Robertson v. City of Montreal

Robertson v. City of Montreal
Collection
Supreme Court Judgments
Date
1915-10-12
Report
(1915) 52 SCR 30
Judges
Fitzpatrick, Charles; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander; Brodeur, Louis-Philippe
On appeal from
Quebec
Subjects
Municipal law
Decision Content
Supreme Court of Canada
Robertson v. City of Montreal, (1915) 52 S.C.R. 30
Date: 1915-10-12
Donald Robertson (Plaintiff) Appellant;
and
The City of Montreal and The Canadian Autobus Company (Defendants) Respondents.
1915: May 26, 27; 1915: October 12.
Present: Sir Charles Fitzpatrick C.J. and Idington, Duff, Anglin and Brodeur JJ.
ON APPEAL FROM THE COURT OF KING’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.
Municipal corporation—Powers of council—Highways—Exclusive privilege—Necessity of by-law—Validity of contract—Right of action—Status of plaintiff—Shareholder in joint-stock company—Ratepayer—Special injury—Public interest—Prosecution by Attorney-General—Practice—Art. 978, C.P.Q.
Assuming to act under authority of an existing by-law regulating traffic by autobusses and in virtue of a special statute (2 Geo. V., ch. 56 (Que.)), and the general powers conferred by the city charter the municipal council passed a resolution authorizing the corporation of the municipality to enter into a contract granting a joint stock company the exclusive privilege of operating autobus lines on certain streets in the city and charging fares for the carriage of passengers. An action was brought by a shareholder in a tramway company (which held similar privileges), who was also a municipal ratepayer attacking the validity of the by-law and of a contract made by the municipal corporation in pursuance of the resolution on the grounds that there was no authority for the granting of such exclusive privileges, that such powers, if they existed, could only be exercised by means of a by-law, and that a provision in the contract whereby the municipality became entitled to certain shares in the stock of the autobus company was ultra vires of the municipal corporation.
Held, affirming the judgment appealed from (Q.R. 23 K.B. 338), Idington and Anglin JJ. dissenting, that in the absence of evidence
Note.—Leave to appeal to the Privy Council was refused on the 18th of December, 1915. of special injury sustained by the plaintiff, he had no status entitling him to bring the action.
Per Idington J., dissenting.—The plaintiff was entitled to institute the action by virtue either of his quality as a shareholder in the tramway company, the privileges of which might be injuriously affected, or as a ratepayer of the municipality.
Per Anglin J., dissenting.—The plaintiff could bring the action in his capacity as a ratepayer of the municipality.
Per Fitzpatrick C.J. and Duff and Brodeur JJ.—An appropriate remedy in such a case would be by action prosecuted by the Attorney-General of the province under article 978 of the Code of Civil Procedure.
Per Duff J.—Such an action might be prosecuted either by the municipal corporation itself or by an authority representing the general public.
Validity of the by-law, resolution and contract in question discussed by Idington, Duff and Anglin JJ.
APPEAL from the judgment of the Court of King’s Bench, appeal side[1], affirming the judgment of Demers J., in the Superior Court, District of Montreal, dismissing the plaintiff’s action with costs.
The material circumstances of the case are stated in the judgments now reported.
Lafleur K.C. and R. Taschereau K.C. for the appellant.
Atwater K.C., Bisaillon K.C. and J. A. Archambault K.C. for the respondents.
The Chief Justice.—In my opinion, the appellant is not qualified to bring suit. A ratepayer who has not suffered any special injury, but only such as is public in its nature and affects all the inhabitants alike, has no interest entitling him to bring action against the city. It is against public policy that he should be permitted to do so. It is undoubtedly the law in England that such a suit can only be brought with the permission and in the name of the Attorney-General representing the Sovereign, the parens patriœ. Apart from any presumption to which this fact may give rise in favour of the principle the grounds on which it is based seem clear. Rule in France, Garsonnet, vol. I., No. 376.
It would be difficult for public business to be carried on at all if every individual in a city with a population of half a million persons could sit in judgment on all the actions of the civic authorities and any crank were at liberty to drag them at any time before the courts. The city would never be free from litigation with its attendant expense when, as would probably be often the case, the complainants were men of straw.
But there is more than this. That which is for the general benefit of all the ratepayers may cause an injury to the private interests of any particular ratepayer which would far outweigh any advantage which he might gain simply as one of the body of ratepayers. This injury may or may not be actionable. If, for instance, his property is taken for the common purposes he will have a right of action, but if it is merely in his capacity as a rival trader that he suffers loss this may well give rise to no cause of action.
The appellant is the private secretary of the Montreal Tramways Co. and, as found by the trial judge, is only the “prête-nom” of a rival company. He originally claimed qualification as holder of a few shares in the company transferred to him for the purpose of the action. This clearly gave him no title to sue and in the course of the proceedings he abandoned the claim. His claim as a ratepayer is not bonâ fide as such. The contract is not against the interest of the ratepayers generally, but in their favour and the appellant is using his interest as a ratepayer not for the benefit of the whole body of ratepayers, but in the interests of his private business. This claim as a ratepayer is an attempt to do indirectly what he cannot do directly.
Nevertheless, it is necessary to consider carefully what is the law, since if it permits the bringing of such actions, the courts have to give effect to it whatever inconvenience may result from such a course.
Article 77 of the Code of Civil Procedure provides that
no person can bring an action at law unless he has an interest therein.
This is merely a formal statement of a rule that is elementary in every system of law. The difficulty that may arise is in determining what is an interest in the particular case.
In a Scotch case recently before the House of Lords (Dundee Harbour Trustees v. Nicol[2]), Lord Dunedin in his judgment said:—
By the law of Scotland a litigant must always qualify title and interest. * * * I am not aware that any one of authority has risked a definition of what constitutes title to sue. I am not disposed to do so.
There is, I think, similarity as to this between the Quebec and the Scotch law and I do not myself propose to attempt any definition of what constitutes an interest within the meaning of article 77, C.P.Q.
It seems clear that there must he some limitation placed upon the word. Farmers in the west of Canada whose produce is all sent to be shipped from the Port of Montreal must certainly have an interest of a kind in the affairs of the city. Indeed, every Canadian might be said to have an interest in the good government of the commercial metropolis of the country.
When the interest which the individual has is no greater or other than that of the rest of the public he has not, in my opinion, an interest in the action within the meaning of article 77, C.P.Q.
But no one is on this account without remedy. An individual can always inform the Attorney-General who can, and, in a proper case, must, take action thereon (art. 978, C.P.Q.). If the Attorney-General does not consider the case a proper one for him to intervene in he can permit the complainant to use his name and the action is then brought in the name of the Attorney-General on the relation of the individual informant. There is in this practice the advantage that the Attorney-General can impose such terms for security for costs being given as in the circumstances of the case he may deem proper.
Then it must not be forgotten that section 304 of the charter of the City of Montreal (62 Vict. ch. 58) provides a special remedy in favour of any individual ratepayer. In the manner provided in this section
tout contribuable peut, par requête libellée, en son nom, présentée à la cour supérieure, demander l’annulation d’un règlement pour le motif d’illégalité.
This provision does not necessarily imply either that there would be otherwise no remedy or that any previous right of action is superseded. There might, however, be some presumption that the latter alternative was the intention of the legislature. It is common where the intention is otherwise for the legislature to state explicitly that the remedy it provides is to be in addition to, and not in lieu of, any existing remedies. I do not doubt, however, that but for this provision individual ratepayers would have had no right to take action such as this section expressly confers upon them.
When we come to examine the jurisprudence on the subject, I think it is doubtful whether the courts have given any decisions that conflict with the principle under consideration.
I do not wish to enter at tedious length into a discussion of any that may be supposed to do so; most of them, at any rate, can, I think, he distinguished. There is, however, one class to which the majority probably belong to which I must call attention. There are cases in which property is involved on which the courts fastening a trust have held that fiduciary relations existed between the parties. It is on this ground that a corporation in the capacity of a trustee is allowed to be sued by an individual inhabitant as one of the cestuis que trust.
In the United States this right and the doctrine on which it is based are distinctly recognized. Thus, in Dillon, on Municipal Corporations (5 ed.), vol. IV., p. 2763, sec. 1579, it is said that in the United States the right of property holders or taxable inhabitants to resort to equity to restrain municipal corporations under such circumstances is established; the origin of the equitable doctrine is explained in the following sections. In the much quoted judgment of the United States Supreme Court in the case of Crampton v. Zabriskie[3], it was said:— Of the right of resident taxpayers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county or the illegal creation of a debt which they in common with other property holders of the county may otherwise be compelled to pay, there is at this day no serious question.
It will be observed that in the United States the proceeding is one in equity. Whether the courts in this country would in like cases assume to exercise a similar equitable jurisdiction need not be too closely inquired into. The present case offers no occasion for the raising of any trust or the jurisdiction flowing therefrom.
To this class of cases belongs the case to which I have already referred, of the Dundee Harbour Trustees v. Nicol[4], though the principle on which it depends may not be so expressly recognized. In that case the appellants had been constituted by statute a body of trustees to be elected in part by the shipowners and harbour ratepayers of Dundee, and the Act vested in them certain property and rights. They made a use of part of their property for purposes not authorized by the Act and which involved the risk of its loss. It was held that they could be restrained from so doing and that the respondents, who were shipowners and harbour ratepayers, had a good title to maintain the proceedings. The Lord Chancellor said:—
Reading the sections together I think that the effect of the statute is to establish a trust comprising a fund made up of rates, ferry dues and other sources of income as well as of sums authorized to be borrowed. * * * It appears to me that the respondents have an interest as beneficiaries in the fund so constituted and in the undertaking. * * * I see no reason in point of principle to doubt that this beneficial interest in the trust funds and undertaking, which are vested in the appellants as a corporation with limited powers, is sufficient to enable the respondents individually to claim to restrain dealings which are ultra vires with the trust funds and undertaking.
And, after referring to the usual and proper practice in England to invoke in such a case the assistance of the Attorney-General, he said that he thought it probable that even in England a harbour ratepayer in such a case
whose interest in the undertaking and funds is apparent ought to be treated as within the analogy of the principle, which enables a single shareholder to sue in his own name to restrain an ultra vires action.
Lord Dunedin, who delivered the principal judgment on the point, insists on the argument that the respondents being persons for whose benefit the harbour is kept up have a title to prevent an ultra vires act of the appellants which directly affects the property under their care.
So that it was really as trustees of the property to which the respondents had contributed and in which they were beneficially interested that the appellants were sued, and it was to prevent the loss of that property through their improper acts.
There can be no analogy between such a case and that of a ratepaper suing to prevent acts which neither involve any property in which the ratepayers are interested as cestuis que trust, nor impose any taxation or burdens upon them, but on the contrary are for their common advantage.
If I have dealt more fully with this case than its concern with the present case calls for, it is because it is the most recent case on the subject and has the authority of the final Court of Appeal for the United Kingdom. It illustrates well, moreover, the character of the class of cases in which a single individual can sue as one amongst a number of beneficiaries a corporation in whom property is vested in trust for all such beneficiaries.
As regards cases in the Canadian courts, particularly those of the Province of Quebec, I do not desire to say more than that I think the foregoing remarks apply with force to them. Perhaps, however, it must be admitted that there is difficulty in reconciling all the decisions in the Quebec courts.
Under these circumstances I think the matter must be treated as one that, in view of its importance, has not yet been sufficiently discussed and, at any rate, not conclusively decided. I think on all grounds it is open to this court to give a clear and final decision upon this point.
Since for the above reasons I consider that the appellant was not qualified to bring suit I express no opinion upon the merits of the questions raised in the suit.
The appeal is dismissed with costs.
Idington J. (dissenting).—The respondent, the City of Montreal, a municipal corporation, entered into a contract with the other respondent whereby an exclusive franchise was attempted to be given the latter to establish and operate lines of autobusses to be operated over certain streets of said city in the way of carrying passengers for hire for the period of ten years.
The contract rests upon a by-law of the city, which it is said delegates the power to the city council to enter by way of resolution into such a contract, and upon such a resolution passed by the said council. The contract is dated 22nd August, 1912, and is expressly made in virtue of the authority conferred upon the city hy 2 Geo. V., ch. 56, sec. 12, sub-sec. 137, as well as all the municipal regulations of said city which can relate to the exploitation of autobus lines of the company.
The appellant is a ratepayer of the city and claims that the whole proceeding is illegal.
The questions thus raised must be determined by the consideration of a few sections of the city charter as amended by some of the numerous amendments that exist and of a few elementary principles of municipal law.
The amending sub-section 137, being that alone upon which the parties could have proceeded and must have supposed their proceedings rested, is as follows:—
137. To permit, under such conditions and restrictions as the city may impose, the circulation of autobusses and the establishment, maintenance and operation of autobus lines in the City of Montreal; to prescribe on which streets they may circulate and be established and from what streets they may be excluded; subject to the provisions of arts. 1388 to 1435 of the Revised Statutes, 1909, governing motor vehicles, respecting speed limits, the registration of vehicles and the licences of owners and chauffeurs.
To understand this we must observe in what connection it is used and how intended by the amendment to be applied. We find in tracing back the matter thus that it is made supplementary to sections 299 and 300 of the charter as consolidated in A.D. 1899 by 62 Vict., ch. 58, which enabled the city council to enact by-laws for the purposes defined and specified.
In the schedule of subjects contained in section 299 there is specified item, No. 17, which is as follows:—
The granting of franchises and privileges to persons or companies. Section 300, so far as bearing upon this subject, is as follows:—
300. And the city council, for the purposes and objects included in the foregoing article, but without limitation of its powers and authority thereunder, as well as for the purposes and objects detailed in the present article shall have authority: * * * 74. To regulate and control, in a manner not contrary to any specific provisions on the subject contained in this charter, the exercise, by any person or corporation, or any public franchise or privilege in any of the streets or public places in the city, whether such franchise or privilege has been granted by the city or by the legislature.
Let us read sub-section 137, introduced and put in Connection with the foregoing by 2 Geo. V., ch. 56, above referred to and quoted, as if it followed this, and we see what gives it vitality, and upon and subject to what conditions the power which it contains is given.
It is a power to enact a by-law and nothing less and does not authorize the council to act by a mere resolution.
Surely, it is elementary that any one given a power to do a particular thing, in a strictly specified way, must follow the allotted path and is not at liberty to try to accomplish what he believes to be the same result by some other method, and then claim he is exercising the powers given.
I find, therefore, that the power given to do that contemplated by the amendment quoted above, whatever may be the scope and purpose thereof, must be exercised by by-law.
There was no by-law adopting the contract in question and, hence, it cannot rest upon this amending section; for the mere resolution of the council cannot maintain anything dependent thereupon.
It is argued that the amended powers of the commissioners enable this contract to be entered into by a resolution of the council. Sub-section 3 of section 21, enacted by 1 Geo. V., ch. 48, as follows:—
It shall devolve upon the council, on the commissioners’ report, to grant franchises and privileges, by by-laws, resolutions or contracts, as the case may be; to issue debentures and to effect loans,
is relied upon.
With great respect I cannot see how such an interpretation can be placed upon this sub-section.
It clearly indicates that where “as the case may be” a by-law is the appropriate method, then a by-law must be adopted, and where a resolution is a suitable mode of executing the proposals of the commissioners, that may be adopted.
It would surprise some people to be offered debentures resting merely upon a resolution of the council even if the commissioners had recommended such an issue.
Again, it has been argued that, as there may be a general power given municipalities relative to franchises for running cars for the conveyance of passengers, and, as clause 4650(a) and following sections, restraining the like grants beyond ten years, unless sanctioned by a vote of the municipal electors, use the phrase “by-law or resolution” in dealing therewith, it may he implied first, that an exclusive franchise for the ten years can be granted and that when the term of any such contract is less than ten years, then the use of a resolution may be resorted to.
Such far-fetched reason for resting an implication of any kind upon hardly deserves serious consideration in relation to the matter now in hand.
These general provisions are intended to be comprehensive and to cover not only the actual, but also the possible by virtue of any existing, or by way of anticipation of any future regulation, enabling the use of either by-law or resolution in the cases referred to. How can the suggested implication rest thereupon unless and until legislative authority had been given to use resolutions as such basis of action?
Moreover, I venture to think that a municipal corporation bas only such powers as are expressly given it by statute or as may arise from the necessary implication involved in the obligation to discharge some statutory duty imposed upon the corporation. And in the discharge of any such duty the usual methods appropriate to the execution of such business must be adopted.
When such corporations find they cannot, by acting within these limitations, efficiently promote the supposed purposes had in view in their creation, they usually apply to their legislative creators to confer further powers.
Such, I take it, was the origin of the amendment above quoted and relied upon. It never was, I imagine, supposed that there existed any such implication till the hard exigencies of arguing to maintain this contract suggested a resort thereto.
Starting out in any direction to solve the problems involved herein we are always driven back to the realization of the hard legal facts that the only semblance of power ever given in relation thereto was to enact a by-law relative to
the circulation of autobusses and the establishment, maintenance and operation of autobus lines in the City of Montreal.
And this has not been adhered to.
Again, the contract proposed was to constitute an exclusion of others than the respondent company from operating upon the streets selected. No such power is given in this section or elsewhere.
To begin with the streets are open to use by everyone for travelling over with suitable vehicles and whether carrying either passengers or freight for hire, or only for private business or comfort. An express enactment is required to take away any part of this public right.
In the next place the mere regulation of the traffic on the streets which is vested by the charter of the city in its authorities seems to have been the purpose of, and at least is clearly the nature of, what this amendment is provided for, and it cannot he extended by by-law, or otherwise, to the creation of an exclusive right in any man or firm or corporation to use the streets for any specific purpose. All must be treated alike unless by virtue of some express legislation taking away such right.
The section enables the council to prescribe the streets on which autobus lines may circulate, but does not enable the preference of one line over another.
I think it may be well, respectfully, to point out that those depending upon the argument of implication in legislation, would do well to consider the chapters in Hardcastle on Statutes dealing with implications and enabling statutes, and the many authorities collected therein.
The respondent being a ratepayer and constituted by the city charter a member of the corporation is entitled to take this action. It is one sort of security the law gives (as it does to each member of a corporate body) for keeping the municipal authorities in their acts within the limitations of the law, or often municipal government would be quite intolerable.
The statute gives, it is true, a summary method for attacking by-laws, but that is not inconsistent with the right each member of a corporate body has by law. And the provision does not purport to exclude any other remedy, though giving a summary method.
The appeal should be allowed with costs throughout, the contract declared illegal and void, and the by-law and resolution also, so far as designed and, if possibly valid, capable of being applied to support such a contract.
There are a number of the paragraphs in the bylaw which are general and in themselves complete and inoffensive as they trench upon no man’s right.
I had written the foregoing opinion before the re-argument, which recently took place, touching the right of the appellant to institute such proceedings as presented herein, was directed.
That right of appellant must depend upon whether or not he falls within article 77 of the Code of Civil Procedure for Quebec, which is as follows:—
77. No person can bring an action at law unless he has an interest therein.
Such interest, except where it is otherwise provided, may be merely eventual.
The new part indicates (whatever else it may have been intended for) as fairly arguable the proposition that the shareholders of the Montreal Tramways Company having an eventual interest in the decision of such a question as agitated herein, may be qualified to sue. The value of the interest is immaterial. It might happen to be, in any case, either that of the owners of almost the entire shareholding property, or of only a single share.
The probably tenable answer is that generally speaking the shareholders are not as such entitled to apply to the courts unless and until shewing that by reason of the existing conditions of the company or its directorate, who should act but will not, there is no means left to any number of shareholders to obtain justice, or that the company is doing, or attempting to do, that which is ultra vires.
That brings the matter back to the other ground taken in this action by the appellant as an inhabitant and ratepayer, in other words as a corporator, that the contract he attacks is ultra vires of the corporation of which he is a member and that in having it so declared he has an interest entitling him to sue. English practice might suggest or require the suit to be on behalf of all the ratepayers. Passing that minor point not raised in argument, I return to the proposition just enunciated, which I maintained in what I have already written, and still maintain (more confidently) as result of the re-argument,
“The inhabitants and ratepayers of the City of Montreal and their successors” were, by section 4 of the charter, incorporated.
The charter, by section 304, specifically recognizes a ratepayer as having the right to apply to the Superior Court to annul any by-law. And a similar provision is made in the “Cities and Towns Act,” para. 5623 of the Revised Statutes of Quebec, and article 698 of the Municipal Code.
All these provisions indicate that the legislature considered ratepayers to be in fact persons interested.
I think these enactments merely provide a summary remedy by petition, in addition to such remedies as already were existent, for the enforcement of the legal right thus, apparently as matter of course, assumed to exist and to be grounded upon obvious interest.
And the almost entire abstention on the part of the Attorney-General from interference in such matters would seem to indicate that reliance is not to be placed as in England upon such officer, but upon the vigilance of the ratepayers for the purpose of protecting the members of municipal corporations against attempts on the part of those in authority to act ultra vires.
Then why should we assume under such a condition of things that an article of faith, as it were, which anciently existed in England must prevail in Quebec?
Surely in the absence of English faith and practice there, and where reason alone is our guide, it is expressive of our common sense to hold that every “inhabitant and ratepayer” has a direct interest in keeping his municipal rulers within their legal boundaries. It is not a question of every such man having a right to interfere with the acts of the class of men whom the legislature has designated, and from whom the people have chosen those to transact the business of the corporation. It is simply the question of restraining such men from misrepresenting those who put them there going beyond the line of their authority that is now in question.
Why, for example, should shareholders of a corporate company impliedly have this right and it be denied to the municipal corporator?
Why should a shareholder be told, as he was by Bacon V.C. in Hope v. The International Financial Society[5], at page 332:—
But he is a shareholder also, and, as a shareholder, it is his right, and it is also his duty, to see that the moneys of the company are applied to their legitimate purpose.
This seems to me sound law and sense and so was upheld in appeal. The plaintiff there had an interest as a creditor, but that was expressly discarded. The case is cited in Buckley on Companies, etc. (9 ed.), at page 613, where the legal distinctions applicable to cases in which a shareholder may, and those in which he may not, have a right to invoke the action of the courts to control a company, are dealt with.
Or take the doctrine as laid down by Sir George Jessell in Russell v. Wakefield Waterworks Co.[6], at pages 479 and 480, and especially foot of latter page, when quoting with approbation the language of Sir J. Wigram in Foss v. Harbottle[7], where he ends by attributing to Lord Cottenham the saying that
the claims of justice would be found superior to any difficulties arising out of technical rules respecting the mode in which corporations are required to sue.
What is dealt with there is not exactly what we have to deal with here, but the mode of thought and speech touches what may well have been had in mind by those amending the article 77 of the Code of Civil Procedure already quoted.
It all comes back to what that article covers and enables or impliedly denies.
If the attitude taken in England towards the supposed needs of resorting to the Attorney-General as sole repository of the right and duty to invoke the powers of the court to restrain corporations from transgressing the limits of their powers, has been correctly reflected in these dicta as what obtained half a century ago, can we rely much upon the merely technical doctrine transmitted thence as a guide to interpret said article 77?
The Attorney-General of Quebec has, by article 978 of the Code of Civil Procedure, imposed upon him the respective duties, therein expressed, either absolutely or conditionally, as the case may be. Does that take away from the interest, right or duty of the “inhabitant and ratepayer”?
I do not find therein any such necessary implication.
Then in articles 713, 714, 715, and 716 of the Revised Statutes of Quebec, 1909, there is defined his legal functions, duties and powers.
Amongst these article 716 gives him the functions and powers which belong to the office of Attorney-General and Solicitor-General of England, in so far as the same are applicable to this province, etc.
When we fail to find an active use of such powers in relation to such subject matters, should we not conclude that the same have not been found in that respect applicable to the province?
If he is supposed to act only upon the application of some one indemnifying against costs under article 978, then who has the right to so demand?
If the ratepayer or inhabitant has no interest, how can he demand such action? It seems over refinement to say he has an interest which entitles him to set the law in motion, yet no interest entitling him to sue. Let us turn to article 50 of the Code of Civil Procedure, which reads as follows:—
50. Excepting the Court of King’s Bench, all courts, circuit judges and magistrates, and all other persons and bodies politic and corporate, within the province, are subject to the superintending and reforming power, order and control of the Superior Court and of the judges thereof in such manner and form as by law provided.
Who is to move the court to invoke the exercise of this visitorial power? If intended to limit it to those moving by and through the Attorney-General, the article likely would have said so. We do know that such has not been the interpretation given it in many cases. Even before this legislation the power was exercised apparently as if inherent in the court, though not as accurately defined.
The courts have continually acted upon the application of those interested and the only difference of opinion has been as to the interest a ratepayer, merely as such, may have. We find many cases in which the objection has been taken that he applying had no interest, and that often answered by shewing he had some possible financial interest more or less remote. From this counsel for the company seems to ask us to infer those cases are the limit. I fail to find in the very numerous cases of that sort any such doctrine as he argues for to be necessarily implied.
I do find, however, something to warrant the inference that a confusion of thought has often existed in the minds of those pressing such objections, between the right of a member of the corporation to restrain it acting ultra vires and that of a member of the general public in such cases as arise out of what is intra vires the municipal authority. For example, some obstruction may exist on a highway, obnoxious to the safety or general sense of propriety, and a member of the public may complain. Unless, however, he is able to shew he suffers particularly beyond the rest of the public same injury therefrom, he is held not entitled to bring a suit therefor. The subject is within the administrative powers of the municipal authorities. No private right is invaded is the answer to the action. I do not think the cases are at all analogous in law.
We find, however, a line of cases where the suitor had obviously no interest but that of a ratepayer or other member of the corporate body.
The following cases have been cited to us by counsel for appellant, in the recent argument, as some of those in which the element of interest other than simply as a ratepayer or otherwise, as member of the corporation, clearly did not exist, or was in effect eliminated, by the view taken by the court, as to such right and interest.
The case of Allard v. La Ville de Saint-Pierre et al.[8], is one where the question arose of the right of a ratepayer to bring an action before the Superior Court to have a by-law quashed which had been passed ultra vires which was maintained in appeal. All the questions involved herein relative to the right of a ratepayer to sue in the Superior Court instead of proceeding by way of petition as an elector were dealt with therein.
Then in the case of Aubertin v. La Ville de Maisonneuve[9], it was first decided by Mr. Justice Curran that the action should be dismissed purely on the ground that there was no right in the plaintiff to sue in his quality of proprietor of immovables situated within the limits of the municipality defendant; and that he did not shew any grievance not suffered by other proprietors and electors. In appeal to the court of appeal the judgment was reversed, the majority of the court holding distinctly that there was error in the said holding of Mr. Justice Curran. Many cases are cited in the notes thereto; some relevant to the point in question, others not so relevant.
In the case of Lennon v. La Cité de Westmount[10], the exception was taken, that the plaintiff should have proceeded by way of petition and it was held that where the by-law was ultra vires the ratepayer need not proceed by way of petition.
In the case of Corporation of Arthabasca v. Patoine[11], the right seems to have been recognized although the Chief Justice, Sir A. Dorion, dissented from the result, holding that in that case proceedings were not open to he taken by anybody, because it was a matter for the administration of the municipality in which there might be a mere irregularity. He expressly distinguishes that case from the case where the council has acted beyond its jurisdiction and seems to have recognized that then any party injured could proceed in virtue of the provisions of the Code, or, in certain cases, by direct action in the ordinary form. Unfortunately the exact question of whether the individual ratepayer would in such a case necessarily be injured, was not by him touched upon. The case is valuable for the consideration given therein to the general principles which ought to govern those managing municipal affairs, and govern the court in supervising their conduct and rectifying wrong, if any.
In Guay v. The Corporation of Malbaie[12], the court seemed to recognize the right of an elector or ratepayer as having sufficient interest in certain cases.
In Jacob v. La Cité de St. Henri[13], Judge Pagnuelo clearly holds the ratepayer had sufficient interest.
The case of Tremblay v. The City of Montreal[14] proceeds on article 304 of the charter, but St. Pierre J. distinguishes between that which is intra vires and that which is ultra vires, as to the extent of this remedy.
In Trudel v. Gité de Hull[15], the right of a ratepayer to have a mandamus to compel the corporation to observe the law was clearly recognized. That case concerned the finances of the city, but turned on the question of the plaintiff having an interest to bring the suit therefor. The plaintiff clearly had no such right as where given expressly the power as in the last mentioned case. Yet he was held entitled to sue. The form thereof or kind of relief sought or got cannot affect the question of his right or interest. If he had no interest he could not sue in any form.
The case of Farwell v. Corporation of Sherbrooke[16] clearly lays down the law that the ratepayer is not confined as to his right to relief to the provisions contained in specific articles enabling him to sue, but may have a by-law passed ultra vires quashed by taking the proceeding in an ordinary action. Many of the leading cases in Quebec are discussed in the judgment.
I may also refer to the case of Piché v. La Corporation de Portncuf[17], where the Court of Review confirmed, for the reasons given by Routhier J., the judgment given by him granting relief against the action of the council in regard to roads, where he relied upon article 2329 of Revised Statutes of Quebec, 1888, which gives very wide powers Over all courts, magistrates and judges, and circuit courts and corporations in the province, and now appears as article 3085 of the Revised Statutes of Quebec, 1909.
I do not think we should discard and overrule such a mass of authority simply because we find in some other cases a different rule has been observed.
I have examined all such cited and many others, for the subject is an interesting one. I think, however, when we have under consideration any branch of the law where there has been a development, indicating a process of discarding that which is no longer serviceable, and substituting therefor that which tends to the furtherance of justice and judicial control over those who are determined to exceed the limits of their authority, we should at least lend a sympathetic ear to such decisions as tend to aid and promote such beneficent development.
In this instance it turns upon the meaning to be given the “interest” of him who, if he has regard to what is going on about him, must be most deeply interested in seeing that the bounds of authority in his local rulers are not exceeded.
It does not occur to me that the term can only relate to financial interests. In the ultimate result, assuredly, misgovernment always tends to affect even those inte