Court headnote

La Ville St-Michel v. Shannon Realties Ltd.
Collection
Supreme Court Judgments
Date
1922-10-10
Report
(1922) 64 SCR 420
Judges
Davies, Louis Henry; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander; Brodeur, Louis-Philippe; Mignault, Pierre-Basile
On appeal from
Quebec
Subjects
Municipal law
Decision Content
Supreme Court of Canada
La Ville St-Michel v. Shannon Realties Ltd., [1922] S.C.R. 420
Date: 1922-10-10
La Ville St-Michel (Defendant) Appellant;
and
Shannon Realties Limited (Plaintiff) Respondent.
1922:: May 19; 1922: October 10.
Present: Sir Louis Davies C.J. and Idington, Duff, Anglin, Brodeur and Mignault JJ.
ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.
Municipal corporation—Valuation roll—Fictitious valuation—Action to set aside roll—Absolute nullity—Supervising control of Superior Court—Statutory means of relief—Jurisdiction of Circuit Court— Prescription—Incompetency—Arts. 48, 50, 54, 77, 978, 987, 1003, 1292 C.C.P.—R.S.Q. (1909) arts. 5256 & seq. 5591, 5623 & seq., 5696. 5705 & seq., 5715 & seq., 5730—M.C. Arts. 430,431,433— [1849] 12 Vict., c. 38, s. 7—(Q.) 5 Geo. V., c. 109, s. 28.
The valuation of the respondent's property by the municipality appellant was not fictitious nor grossly excessive. Anglin and Mignault JJ. dissenting.
If a valuation roll has been made within the powers of a municipal corporation and in the absence of fraud, the party assessed cannot invoke the supervising control given to the Superior Court (Art. 50 C.P.C.) in order to set aside the roll, when other relief is provided by way of appeal to the Circuit Court. Anglin and Mignault JJ. dissenting.
Per Anglin and Mignault JJ. (dissenting).—As the overvaluation constituted such an illegality that it must be considered as an absolute nullity ab initio, the Superior Court has jurisdiction to annul the roll under the authority of Art. 50 C.P.C. Per Davies C.J. and Brodeur J.—Moreover, the respondent's right to take a direct action before the Superior Court, if existing, would have been prescribed, as not having been exercised within three months from the date the roll had been in force. (Art. 5624 R.S.Q. (1909)). Anglin and Mignault JJ. contra.
Per Duff j.—Although article 5696 R.S.Q. (1909) expressly provides that taxable property shall be assessed "according to its real value," a departure from this statutory mandate does not constitute legal incompetency rendering the acts of the corporation ultra vires and ab initio null, as the statutory law provides a means for complaining against such a valuation and correcting it.
Judgment of the Court of King's Bench (Q.R. 32 KB. 520) reversed, Anglin and Mignault JJ. dissenting.
APPEAL from the judgment of the Court of King's Bench, appeal side, Province of Quebec[1], affirming the judgment of the Superior Court, Maclennan J., and maintaining the respondent's action.
The appellant had instituted a suit, on the 18th of September, 1917, in the Superior Court, to recover from the respondent the taxes in arrear for the years 1913, 1914, 1915 and 1916, making, with interest thereon, the sum of $9,697.60. On the 20th of February, 1920, the respondent instituted the present action whereby it seeks to have the first action joined and that the assessment rolls and collection rolls for the years 1913, 1914, 1915, 1916, 1918 and 1919 be held illegal, irregular, null, ultra vires, quashed and annulled. At the trial, the case as to the rolls for the years 1913 and 1914 was abandoned, as the taxes for these years had been prescribed. For the year 1917 the respondent had taken an appeal to the Circuit Court against the valuation roll and had succeeded in obtaining a reduction of the valuation.
(1) Reporter's Note.—Special leave to appeal to the Privy Council was granted, December 8th, 1922. L. E. Beaulieu K.C. for the appellant. The valuation of the respondent's property was not excessive.
Assuming that the property was over-valued, the respondent having neglected to avail itself, within the time prescribed, of the statutory remedy by way of appeal to the Circuit Court, was debarred from complaining by way of a direct action before the Superior Court under Art. 50 C.P.C. Bain v. City of Montreal[2]; Municipality of Macleod v. Campbell[3].
Respondent's only available remedy was the setting aside of the collection rolls as regards its own property.
G. H. Montgomery K.C. and A. Mailhiot K.C. for the respondent. The finding of fact as to overvaluation is unanimous in the courts below.
The collection rolls are ultra vires and in violation of 5 Geo. V., c. 109, s. 28; and further as resting upon valuation rolls themselves ultra vires and made in violation of Art. 5696 R.S.Q. (1909).
L. E. Beaulieu K.C. for the appellant.
G. H. Montgomery K.C. and A. Mailhiot K.C. for the respondent.
The Chief Justice.—I am of the opinion that this appeal should be allowed with costs here and in the Court of King's Bench and the action dismissed with costs.
Had I been able, as one of my colleagues has, to reach the conclusion that the valuation of the plaintiff's lands in question for the years 1915, 1916, 1918 and 1919 were merely "fictitious valuations" and fraudulent exercises of the power to make assessments conferred on the assessors, I might have reached the conclusion that the Superior Court had the power, under Art. 50 C.P.C. to set them aside as void and illegal.
But I have not, on the record before me, been able to reach any such conclusion. On the contrary, I think such valuations were made honestly and without fraud in the light of the boom which existed with regard to lands within the municipality of St. Michel during the years mentioned, and before that boom had actually, as it is said, "burst."
A long experience in this court in dealing with the "real value" of lands in towns and municipalities where a boom in land prices had existed has taught me how difficult it is to reach a conclusion of what the "real value" is. Experts giving their evidence on the question differed widely and their various opinions were reflected frequently in the opinions of the several courts called upon to review the assessments made by those whose duty it was in the first instance to make them. These differences of opinion were very pronounced and very great and convinced me that it is difficult indeed during the existence of boom periods, and before the boom has "burst" to reach anything like a unanimous opinion.
In the case now before us I think it fair, on the facts, to conclude that notwithstanding an appeal was made successfully by the plaintiffs in one year, 1917, to reduce the valuation in that year; and as in each and all the years 1915, 1916, 1918 and 1919 no action at all was taken by the plaintiff's respondents to call the valuations for those years in question, they may well be held to have acquiesced in those valuations on the ground that it would or might assist them in selling their lots to prospective purchasers at a very high figure.
However that may be the facts are that in all those years, and until the present action was taken, no steps at all were taken by the plaintiff respondent to appeal from the valuations or to call in question the fairness or unfairness of these valuations. The law has provided a very simple method of their doing so, first, by an appeal to the municipal council and then from the determination of that body to the Circuit Court whose judgment was to be final and binding. As I have said, no such appeal was ever taken in the years I have mentioned.
Subject to what I have said in the foregoing reasons, I think the Superior Court had no power under art. 50 C.P.C. to entertain the plaintiff respondents' application to set aside the valuations.
I concur generally in the reasons and conclusions of Brodeur J.
Idington J.—The respondent is the owner of a farm of nearly eighty acres which was subdivided, in 1913 or thereabouts, into lots each of about a tenth of an acre in size and possibly by reason of the subdivision having proved an unprofitable venture, for only some thirty lots were sold, the tenant who had long carried on the farm has been induced to continue farming there despite the subdivision.
The market value of the property seems to have increased so rapidly for some years that from haying been bought in July 1911 for the price of $1,000 per arpent, it passed to the respondent in May, 1914, for the price of $2,200 per arpent
The assessor or succession of assessors seem to have been induced thereby, and by the price list of the respondent, to raise the assessed value of the whole to the total sum of $528,104.00, in the years 1915, 1916, 1917 and 1918.
The respondent never, until 1917, took any of the regular and proper steps provided by statute for complaining against over assessment. In 1917 it did take some steps provided, but what is not clear, for there is nothing relative thereto presented in the case before us, save a certificate of judgment in the Circuit Court, whereby it appears that the learned judge had reduced the assessment to $500.00 per arpent.
As the result of that it is argued that the said assessors should have adopted that very low figure for the rolls of 1918 and 1919.
A very obvious answer seems to be that, as to 1918, the roll probably was completed by the assessors before the 9th July, 1918, when that judgment was delivered.
I am unable to say why, under such circumstances, the respondent did not avail itself of the means provided by law for appealing to the court of revision for the roll was not homologated until the 11th September, 1918.
The assessment roll of the assessor for 1919 fixed the entire valuation of said property for that year at $347,578. The respondent does not seem to have taken any appeal against that assessment.
The appellant had instituted a suit on the 18th of September, 1917, in the Superior Court, to recover from respondent the taxes in arrear for the years 1913, 1914, 1915 and 1916, making, with interest thereon, the sum of $9,697.60.
On the 20th February, 1920, the respondent instituted this action whereby it seeks to have said action lastly referred to joined and that the assessment rolls and collection rolls for the year 1913, 1914, 1915, 1916, 1918 and 1919, be held illegal, irregular and null, ultra vires, and be quashed and annulled.
When the case came before Mr. Justice Maclennan for trial in the Superior Court, the case as to the rolls for the years 1913 and 1914, was abandoned, and after hearing the evidence adduced, he maintained the action and adjudged and declared that the valuation and collection rolls of the defendant, appellant, for the years 1915, 1916, 1918 and 1919 are, and each of them is and always has been illegal, irregular, null and ultra vires and are set aside and annulled.
Upon appeal therefrom the Court of King's Bench by a majority upheld the said judgment in its entirety, though Mr. Justice Guerin, one of that majority, seems to have had some doubts as to going further than dealing with the claim of partial exemption of the respondent, by reason of the lands in question being farm lands.
The said courts seem, as to the facts, to found said judgments upon the excessive valuation by the assessor and as to the law upon the power given by article 50 of the Code of Procedure.
As to the facts I cannot, after a perusal of the entire evidence, agree that there is therein anything to support such a drastic judgment which if upheld must lead to great confusion; indeed so great as probably to require legislation to carry on the affairs of the appellant as is intimated by the learned Chief Justice.
I, with respect, cannot agree that the 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,
applies where there is a specific power given elsewhere, in the statutes relevant to the subject matter involved, supplying an adequate remedy, and indeed evidently intended to be the only remedy to rectify any wrong doing on the part of the assessor of a municipal corporation in the way of under or over valuation. I cannot think that in such like cases resort to this article was ever intended, unless possibly in the cases of actual fraud or ultra vires.
And especially would that seem to be the case when, as here, the roll is declared binding when homologated, presumably after hearing any appeals tendered, as they were in some other cases, and the more so when that homologated roll in turn seems to be subject to an appeal to the Circuit Court.
I cannot help thinking that this specific code, as it were, eliminates any ground for the interference of the Superior Court under Art. 50, unless in the possible exceptions I have referred to, and by no means do I hold that these exceptions either in law or fact apply to such a case as presented herein.
There is no evidence herein to support any charge of fraud relative to the assessment of respondent's property, much less that the whole of these rolls as to every ratepayer were fraudulent. Indeed fraud is not seriously argued. Illegality may cover that or, in a sense, over or under assessment.
I will deal presently with the other of said possible exceptions confining myself to the only one that appears herein arguable on the facts.
I find the cases relied upon by the court below and counsel before us are as follows:—
The case of La Corporation Archiépiscopale Catholique de St. Boniface v. The Town of Transcona[4], was an ordinary appeal to us from the courts below in due course of executing the specific remedy given for just such cases as presented here, If that course had been followed herein, possibly the essence of all involved might have come here if not duly and properly settled by the court of last resort in the province.
La Compagnie d'Approvisionnement d'Eau v. La Ville de Montmagny[5]; Rivard v. Corporation de Wickham[6], are, so far as I can see, the only cases in which the court below has ever acted upon such ground as exists herein.
In the former case the course of events was rather provoking, for the party aggrieved pursued his specific remedies without desirable results, but that furnishes no foundation for the assertion of a jurisdiction which a court has not.
In the latter case the reasoning in the judgment of Pouliot J., who dismissed the application and rested upon a long line of authorities followed up to that time, has my assent as correct.
And when we come to the case of Laberge v. La Cité de Montréal[7], we find another basis of right asserted by the appellant, namely the general exemption. In joining in that judgment the late Mr. Justice Cross expressly excludes the case of a mere error in the amount of assessment, and rests his judgment upon the case therein presented of partial exemption created by a statutory provision for a term of years which seems to have arisen out of circumstances very similar to those which gave rise to the partial exemption in question herein.
These three cases being all so recent as five or six years before the respondent launched this case, and no prior decisions expressly in point having been cited, has induced me to try and trace, if possible, any previous exercise of the power asserted in them, but I have been unable to find any. I find many cases asserting authority over municipal corporations in many ways, by virtue of said article 50 C.P.C., reaching back for fifty years or more, but nothing analogous to what is involved in that presented by this appeal.
The excessive valuation in question herein reminds me of a recent case before us in which judicial authorities passing upon valuation by assessors of a certain property in a city suffering from the same causes as appellant, were found to differ as much as four or five times in regard to the value to be placed upon a certain property.
One court thought one hundred dollars an acre excessive, and another thought four or five hundred dollars an acre was not.
I cannot, for my part, accept such excessive valuations even if they are the aftermath of a mad race in speculation.
But it comes with an ill grace, I submit, on the part of those who have done their part to develop the situation, to refrain from discharging the duty of trying to rectify the results apparent in the assessor's roll year after year and then seeking to overturn the whole basis of the financial structure upon which the affairs of the municipality rest.
I do not think, even if the supervising jurisdiction of the courts could be extended so far, it should be exercised under such circumstances as presented.
Unless in the cases of fraud or what falls properly within the ultra vires rule, no relief should, I submit, be given to suitors so acting, for in such cases a wise discretion may be properly exercised. However all that may be, I still adhere to the principles upon which we proceeded in the case of Municipality of Macleod v. Campbell[8], cited in argument herein. In that case I expressed my own view that to hold a mere excess of value an illegality such as to render a roll void is quite impracticable. Indeed it would surprise a great majority of rural municipalities to be told that taxes could not be collected because the assessor had assessed far below the actual value. Yet that is, in strict law, quite as illegal as assessing too high.
The doing so in either case does not give rise to any application of the doctrine of ultra vires unless in the case of him entitled to claim an exemption.
The duty of him claiming it is to bring the claim before the courts entrusted with the jurisdiction of settling the roll or correcting it.
But if he fail to do so I am of the opinion that he can resist the collection of taxes imposed in violation of his exemption and that he does not need such relief as sought herein for his protection.
The respondent has, I think, on the evidence before us, shewn it is entitled to be taxed on the basis of such exemption, and can insist thereon without being given any such relief as sought herein.
I was at first inclined to agree with Mr. Justice Rivard's suggestion in his well considered judgment, if I may be permitted to say so, with which I almost entirely agree, but on reflection I do not think the application of his solution of the problem is necessary herein, though the principle thereof must be observed in determining the amount the appellant is entitled to recover in the suit it has taken.
I would therefore allow this appeal and dismiss the respondent's action with costs throughout. Duff J.—The-finding of the learned trial judge is in the following words:
Considering that the valuation of the plaintiff's property on the basis of over $6,000 per arpent is and was a fictitious valuation far in excess of its actual or real value and the assessors of the defendant in so valuing plaintiff's property proceeded upon a wrong principle and ignored the real or actual value of said property and thereby exceeded the powers given to said assessors and to the said defendant by its charter and by-law.
I am not quite sure whether the learned judge means that for ulterior purposes the assessors and the municipal council had deliberately combined to assess the property in the municipality at a grossly excessive valuation.
If this is the proper construction of the finding then I think the evidence is inadequate to support it. There is nothing to shew that either the assessors or the council were actuated by any specific improper motive, such for example, as that suggested in the pleadings, namely, that the statutory limit of the municipal indebtedness should be illegally elevated. An inference that there was such wrongdoing would necessarily be an inference based upon the conclusion reached by the learned trial judge that the valuation was grossly excessive. I am not sure that in this sense the finding is concurred in by more than one of the learned judges of the Court of King's Bench; but assuming that in this sense there are concurrent findings of two courts I should still be forced to the conclusion from a perusal of the evidence and the reasons that there are no adequate grounds for such a conclusion. The question whether or not there has been such impropriety must always be a very delicate one. We have had in this court a very wide experience of the divergent views which people honestly entertain (valuators and the professional men of unquestioned integrity charged with official responsibilities in the matter of valuation for taxation purposes) as to the proper method in particular circumstances of ascertaining "actual value;" and it must be obvious to anybody who gives the matter a moment's thought that the whole subject, both in theory and in practice, is beset with difficulties. The questions, is current price an exclusive test? is a great augmentation or diminution in the number of transactions a merely temporary aberration or the result of factors likely to be permanent? and others of a like nature are questions which may well give officials trying to do their duty the most anxious concern. Everybody knows how tenaciously at the close of a period of inflation people cling to their faith in a restoration of price levels after all legitimate grounds for such faith have disappeared.
The respondent's property was in a suburb of Montreal which began to receive the attention of speculators in land as early at least as 1911. Prices had risen with great rapidity and during the years in respect of which the questions agitated in this litigation arise, lands were assessed by the municipality at values based largely upon an estimate made in the years 1913 and 1914. The evidence is that the prices fetched from time to time by sales of small areas formed a starting point from which the valuations were made. It now seems to be quite clear that everybody (the respondent and other speculators and those who purchased lots from them, as well as the officers of the municipality) was over-sanguine and held absurdly extravagant ideas as to the value of the property. But while it may very well be that, as a result of the evidence now offered, the proper conclusion is that $500 an acre was the real value of the property assessed at the rate of $6,000 an acre, it would be quite unfounded to suppose that anybody, the respondent or anybody else, had a suspicion that there was any such disparity between the real value and the assessed value. Indeed property which is now said to have been worth $500 an acre was admittedly sold in 1914 at the price of about $2,500 an acre.
A circumstance to which I think weight has not been sufficiently attached in the court below is the circumstance that these valuations which are now attacked were not during all these years impeached by the ratepayers affected by them in appeal to the Circuit Court as provided by the statute. The Court of King's Bench, it may be observed, has concurred with the trial judge in setting aside the rolls in toto. They have proceeded, so the respondents argue, upon the assumption that conscious and intentional overvaluation and violation of duty governed the municipal officers in respect of all the valuations in the municipality. No appeal has been taken against these valuations which are now attacked. No evidence was given of such appeals and I assume that the decisions of the Circuit Court are not impugned. It is not only a fair deduction, it is I think the only legitimate inference, that the views of the municipal officers as indicated by the valuation were not grossly inconsistent with the values which would have been ascribed to the properties affected by the general opinion of those most concerned, namely, the owners who by statute were made personally responsible for the payment of taxes. I do not suggest that it would be fair to infer that a particular assessment was always accepted as a perfectly just assessment but the inference is, I think, a plain one that there was no such disparity between the general opinion as to value and the assessment of the properties as in itself would justify the inference that the municipal officers were consciously departing from their duty and improperly fabricating an assessment roll with fictitious valuations for an ulterior improper purpose.
I repeat, that having read with care the evidence and the reasons given by the learned judges in the court below I see no escape from the conclusion that (if the respondents rightly construe the findings of fact) the consideration which in my opinion is the predominant consideration arising from the undisputed facts of this case is one to which sufficient weight has not been attached. It might be that a case of actual fraud would afford an answer to an action for the recovery of taxes. I desire to make it quite clear that I reserve entirely any question as to the right of the respondents if such a case of actual fraud had been established. I observe only that if such a question were raised it would be necessary to consider whether, by the law of the province of Quebec, a plaintiff who had declined to avail himself of the statutory remedy by way of appeal could lie by for years while all sorts of rights were being created on the faith of the assessment roll and then demand as of right that the roll should be set aside in toto without any sort of excuse or explanation of his quiescence. For the present I give no opinion upon the point, nor upon the question whether a finding of actual fraud such as that suggested might not afford an answer to a claim for the payment of taxes.
I am, however, unable to say that there is not evidence to support the conclusion of the learned trial judge that the assessors have not observed the principle laid down by the statute, and by that I mean this. I think there is evidence to justify the conclusion that the valuation was so excessive that if competent valuers and a competent municipal council applied their minds to the question of the actual value of the property with anything like a correct appreciation of what is implied in "actual value" they would not have made an assessment in the figures actually arrived at. That is a result quite consistent with the assumption of an absence of bad faith. Such being the state of the facts it is convenient first to address oneself to the question whether you have here a case of legal incompetence. The "Cities and Towns Act," secs. 5256 to 5288 includes provisions dealing with the subject of the values and assessments. Secs. 5696, 5707 and 5708 deal with the authority of the assessor and of the council in relation to the valuation roll. To the assessors is committed the duty of assessing the taxable property of the municipality and to the municipality is committed the duty of hearing and deciding all complaints against valuations made by the assessors and to consider whether or not the roll should be maintained or altered, and authority to revise the same whether complained of or not. It is clearly within the authority of the assessors and the council to consider and to decide upon the valuation of property for the purposes of taxation and to record the result in the valuation roll. Now the Act by art. 5696 expressly provides that the taxable property shall be assessed "according to its real value." It is argued that where there is a departure from this statutory mandate there is a case of want of competence, that the acts of the assessor and the council are ultra vires and ab initio null. That is a conclusion to which I cannot agree. All through the law there runs a distinction between incompetent acts and acts which though competent are wrongful or it may be illegal. Where you have authority to do a certain class of acts coupled with a rule prescribing the manner in which the act is to be done or prohibiting the doing of it in a given way, you may always have the question whether the rule imports a limitation of authority; and whether it does or does not import a limitation of authority is a question to be decided on the construction of the instrument creating the authority viewed in light of the circumstances and the object and purpose for which the authority is given. Now it is quite clear that this statute does not treat as a nullity (it is almost too obvious for remark) a valuation which in fact is not based upon the actual value of the property. The statute does not treat it as a nullity because the statute provides a means for complaining against such a valuation and correcting it. First, there is the right to complain before the municipal council and then from the decision of the municipal council there is a right of appeal to the Circuit Court. If the valuation were a nullity there would be nothing upon which either appeal could operate. I think this applies whatever be the circumstances under which the irregular and wrongful valuation is made. Even if it were shewn that an assessor had overvalued property in consequence of corrupt influence I cannot doubt that it would still be open to the municipality to correct the valuation by resorting to the statutory appeal. It is not conclusive of course on the point of competency or no competency to say that such a valuation is not a nullity because an incompetent act may be only relatively null. For the present I am concerned only in making it clear that there is no case of nullity ab initio, and that, I think, is plain. I think it is also quite clear that there is no case of incompetency because it was the duty of the assessor in the first place to enter the valuation in the valuation roll and in the second place it was the duty of the council to revise it; that is the very thing committed to them by statute. If in performing that duty the statutory rule were consciously disregarded that would be an illegality of a very grave kind. If there is incompetence or negligence such that in effect the statutory mandate is disregarded there may be illegality also, but in neither of these cases is there for that reason alone incompetency in the legal sense. I can entertain no doubt that giving due weight to the provisions for correcting wrong and improper valuations it is quite impossible to hold that in any of these cases there is either legal incompetency or nullity ab initio.
The point has been the subject of so much discussion that I think it worth while to refer to a single case to shew the view which heretofore has been taken upon this distinction between incompetency and illegality as these words are found embodied in Quebec legislation. In Déchène v. City of Montréal[9], the Privy Council had to consider a resolution of the corporation of Montreal under sec. 101 of the Montreal charter which authorized the corporation to make an annual appropriation of an amount necessary to meet the expenses of municipal administration during the current year. The self same clause which authorized the appropriation imposed a restriction that such appropriation should never exceed an amount to be ascertained in a manner prescribed by the section. The council of the corporation made an appropriation in excess of the maximum fixed by the section. Proceedings were taken to set aside the resolution and the corporation answered that the proceedings were prescribed in three months by force of a certain statutory provision, sec. 12 of 42-43 Vict., c. 53, which gave to a municipal elector the right in his own name to procure a judicial annullment of municipal proceedings on the ground of illegality and imposed a prescription of three months where the proceeding was within the competence of the corporation. It was contended among other things that the resolution in question being incompetent the prescription did not apply. The promoters of the litigation insisted that the resolution was incompetent at least in so far as the amount of the appropriation exceeded the statutory maximum. By both the Quebec courts and the Judicial Committee it was held that the complaint was a complaint of illegality and not of incompetence. Lord Watson said at p. 644 of the report that the resolution
was plainly within their competence, seeing that it exclusively relates to matters committed to the council by statute.
In the Court of Queen's Bench Mr. Justice Blanchet, delivering the judgment of the court[10], said:—
L'appelant a prétendu de plus, que la prescription de trois mois ne s'applique pas au cas actual parcequ'en adoptant sa résolution l'intimé avait excédé sa jurisdiction. L'article suscité de la charte dit, en effet, que le droit de se plaindre sera prescrit par trois mois et que la résolution sera tenue pour valide pourvu qu'elle soit de la compétence de la corporation. Il ne faut pas confondre ici la question de pouvoir avec la question de compétence; le conseil avait évidemment le droit de fixer son budget, en y portant les sommes nécessaires pour les dépenses de l'année alors prochaine. Ce sujet était entièrement de sa compétence. De ce qu'il aurait inclus une somme qu'il n'avait pas le droit d'y mettre, il ne s'en suit pas que la resolution n'est plus de sa compétence. Il y a bien là une illégalité qui permettrait au tribunal d'intervenir et de retrancher ce qui est illégal de ce qui est légal, mais non pas de mettre de coté toute la résolution. Les illégalités ou les irrégularités commises à ce sujet peuvent être attaquées par les contribuables dans les trois mois fixés par le statut, à l'aide d'un mode spécial de procédure; mais ce délai passé, ces derniers sont absolument déchus de ce droit. La loi leur a donné un control sommaire et efficace sur les actes de leurs mandataires. Mais, comme il est de l'intéret public que les procédes des corporations soient, après un certain temps, tenus pour valides, la législature a voulu que ce délai une fois expiré, il en résulte une déchéance complète, quant au remède spécial qu'elle fournit, puisqu'elle déclare valide et obligatoire tout ce qui a été fait, dans les limites de la compétence du conseil, laissant aux intéressées le recours ordinaire, aux autres remèdes qui peuvent exister.
I come now to article 50 C.P.C. This article is one that confers jurisdiction, a jurisdiction which, by the terms of the article itself, is to be exercised subject to the special provisions of the law. It does not profess to give, and it would be an unwarrantable extension of its purport to read it as giving, an unrestricted and unqualified right to any subject of the realm to require the Superior Court to review the proceedings of public and private corporations; nor can it properly be read as giving to each elector or ratepayer in a municipality without regard to the qualifications and conditions laid down by the statutes dealing with municipal institutions the right to invoke such jurisdiction in relation to the proceedings of the municipality; and I think that where in relation to a given municipal proceeding or even a given class of municipal acts a special recourse is given to a specified class of persons as affording a remedy for error or illegality then the Superior Court, in exercising its jurisdiction under Art. 50, is governed by the conditions and the qualifications attached by law to that right of recourse. At all events I think it is quite clear that where a special remedy is given by statute if that remedy sufficiently appears, either from the express terms of the statute creating it or from the nature of the case, to be intended to be the exclusive remedy for those to whom it is given then the jurisdiction of the Superior Court is limited accordingly. It is not necessary, as I have already said, to consider what the remedy of the aggrieved owner may be in a case of actual fraud and I put that case aside. In all other cases whether the valuation be the result of error of judgment or of negligence or of reckless inattention or incompetence the statutory remedy is, in my judgment, the exclusive remedy unless it be, and that is the point to which I will come in a moment, that a right to impeach the assessment is given under Art. 5591 R.S.Q. I think this follows from a consideration of the nature and objects of the procedure itself. The object is to get a valuation of the taxable property of the community for the purpose of enabling the tax rate for special taxes as well for general municipal taxes to be struck as the school rate. Once the roll is complete, that is to say, once all appeals and complaints provided for by statute have been disposed of, the roll becomes the foundation upon which the levying and the collecting of taxes proceeds. It is also that basis which determines the limit placed by the law upon the municipal indebtedness. Now if it be open to any owner of property who has allowed the roll to be closed without taking advantage of the statutory procedure to complain of excessive valuation it is obvious that a very wide door to uncertainty and confusion is opened up. Cases of fraud being eliminated if an assessment is open to attack upon the ground that the assessor "has proceeded upon a wrong principle" it will in practice be a hopeless task to assign a limit to the class of cases which might be entertained by the courts. I think when the legislature provides for the making of a valuation roll and a special procedure for disposing of complaints and then makes the valuation roll the basis of taxation it is implied that all questions of valuation as such are, as between the owner and the municipality, to be considered set at rest when the express statutory remedies made available have been exhausted.
I come now to Art. 5591. I am disposed to think than an overvaluation or an undervaluation made through sheer negligence in the sense of neglect on the part of the assessors and of the council to give any consideration to the question of actual value might not improperly be described as an instance of "illegality." I do not think, however, that in such a case of improper valuation the remedy given by Art. 5591 is available to an aggrieved owner because his remedy is explicitly provided for by the section of the "Cities and Towns Act" already referred to and the operation of 5591 for his benefit is excluded impliedly by those provisions.
If I am wrong in this however I concur with my brother Brodeur in thinking, as I have already said, that the complaint preferred is a complaint of illegality rather than incompetency and that in so far as the respondent prefers its complaint qua ratepayer that article applies. The conditions governing proceedings under that article would not, however, affect any right the aggrieved owner might otherwise have to resist a claim for taxes on the ground of fraud nor would non-compliance with such conditions be an answer to a proceeding by the Crown in the public interest on the same ground.
There remains the argument based upon the municipal charter, s. 28. This section deals with the subject of taxation rather than the subject of valuation. It can afford no basis for impeaching the assessment roll. Nor do I think it is a ground for impeaching the collector's roll except as an answer to a claim for taxes. The contention now raised will be open to the respondents in answer to such a claim.
The appeal should be allowed and the action dismissed with costs.
Anglin J. (dissenting)—I have had the advantage of reading the carefully prepared opinions of my brothers Brodeur and Mignault. After full consideration of the record, factums and oral argument I am satisfied to accept my brother Mignault's conclusions that the valuations of properties on the impugned assessment rolls were purely fictitious and were made in utter disregard of real value.
The case presented is not one mere

Court headnote

La Ville St-Michel v. Shannon Realties Ltd. Collection Supreme Court Judgments Date 1922-10-10 Report (1922) 64 SCR 420 Judges Davies, Louis Henry; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander; Brodeur, Louis-Philippe; Mignault, Pierre-Basile On appeal from Quebec Subjects Municipal law Decision Content Supreme Court of Canada La Ville St-Michel v. Shannon Realties Ltd., [1922] S.C.R. 420 Date: 1922-10-10 La Ville St-Michel (Defendant) Appellant; and Shannon Realties Limited (Plaintiff) Respondent. 1922:: May 19; 1922: October 10. Present: Sir Louis Davies C.J. and Idington, Duff, Anglin, Brodeur and Mignault JJ. ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC. Municipal corporation—Valuation roll—Fictitious valuation—Action to set aside roll—Absolute nullity—Supervising control of Superior Court—Statutory means of relief—Jurisdiction of Circuit Court— Prescription—Incompetency—Arts. 48, 50, 54, 77, 978, 987, 1003, 1292 C.C.P.—R.S.Q. (1909) arts. 5256 & seq. 5591, 5623 & seq., 5696. 5705 & seq., 5715 & seq., 5730—M.C. Arts. 430,431,433— [1849] 12 Vict., c. 38, s. 7—(Q.) 5 Geo. V., c. 109, s. 28. The valuation of the respondent's property by the municipality appellant was not fictitious nor grossly excessive. Anglin and Mignault JJ. dissenting. If a valuation roll has been made within the powers of a municipal corporation and in the absence of fraud, the party assessed cannot invoke the supervising control given to the Superior Court (Art. 50 C.P.C.) in order to set aside the roll, when other relief is provided by way of appeal to the Circuit Court. Anglin and Mignault JJ. dissenting. Per Anglin and Mignault JJ. (dissenting).—As the overvaluation constituted such an illegality that it must be considered as an absolute nullity ab initio, the Superior Court has jurisdiction to annul the roll under the authority of Art. 50 C.P.C. Per Davies C.J. and Brodeur J.—Moreover, the respondent's right to take a direct action before the Superior Court, if existing, would have been prescribed, as not having been exercised within three months from the date the roll had been in force. (Art. 5624 R.S.Q. (1909)). Anglin and Mignault JJ. contra. Per Duff j.—Although article 5696 R.S.Q. (1909) expressly provides that taxable property shall be assessed "according to its real value," a departure from this statutory mandate does not constitute legal incompetency rendering the acts of the corporation ultra vires and ab initio null, as the statutory law provides a means for complaining against such a valuation and correcting it. Judgment of the Court of King's Bench (Q.R. 32 KB. 520) reversed, Anglin and Mignault JJ. dissenting. APPEAL from the judgment of the Court of King's Bench, appeal side, Province of Quebec[1], affirming the judgment of the Superior Court, Maclennan J., and maintaining the respondent's action. The appellant had instituted a suit, on the 18th of September, 1917, in the Superior Court, to recover from the respondent the taxes in arrear for the years 1913, 1914, 1915 and 1916, making, with interest thereon, the sum of $9,697.60. On the 20th of February, 1920, the respondent instituted the present action whereby it seeks to have the first action joined and that the assessment rolls and collection rolls for the years 1913, 1914, 1915, 1916, 1918 and 1919 be held illegal, irregular, null, ultra vires, quashed and annulled. At the trial, the case as to the rolls for the years 1913 and 1914 was abandoned, as the taxes for these years had been prescribed. For the year 1917 the respondent had taken an appeal to the Circuit Court against the valuation roll and had succeeded in obtaining a reduction of the valuation. (1) Reporter's Note.—Special leave to appeal to the Privy Council was granted, December 8th, 1922. L. E. Beaulieu K.C. for the appellant. The valuation of the respondent's property was not excessive. Assuming that the property was over-valued, the respondent having neglected to avail itself, within the time prescribed, of the statutory remedy by way of appeal to the Circuit Court, was debarred from complaining by way of a direct action before the Superior Court under Art. 50 C.P.C. Bain v. City of Montreal[2]; Municipality of Macleod v. Campbell[3]. Respondent's only available remedy was the setting aside of the collection rolls as regards its own property. G. H. Montgomery K.C. and A. Mailhiot K.C. for the respondent. The finding of fact as to overvaluation is unanimous in the courts below. The collection rolls are ultra vires and in violation of 5 Geo. V., c. 109, s. 28; and further as resting upon valuation rolls themselves ultra vires and made in violation of Art. 5696 R.S.Q. (1909). L. E. Beaulieu K.C. for the appellant. G. H. Montgomery K.C. and A. Mailhiot K.C. for the respondent. The Chief Justice.—I am of the opinion that this appeal should be allowed with costs here and in the Court of King's Bench and the action dismissed with costs. Had I been able, as one of my colleagues has, to reach the conclusion that the valuation of the plaintiff's lands in question for the years 1915, 1916, 1918 and 1919 were merely "fictitious valuations" and fraudulent exercises of the power to make assessments conferred on the assessors, I might have reached the conclusion that the Superior Court had the power, under Art. 50 C.P.C. to set them aside as void and illegal. But I have not, on the record before me, been able to reach any such conclusion. On the contrary, I think such valuations were made honestly and without fraud in the light of the boom which existed with regard to lands within the municipality of St. Michel during the years mentioned, and before that boom had actually, as it is said, "burst." A long experience in this court in dealing with the "real value" of lands in towns and municipalities where a boom in land prices had existed has taught me how difficult it is to reach a conclusion of what the "real value" is. Experts giving their evidence on the question differed widely and their various opinions were reflected frequently in the opinions of the several courts called upon to review the assessments made by those whose duty it was in the first instance to make them. These differences of opinion were very pronounced and very great and convinced me that it is difficult indeed during the existence of boom periods, and before the boom has "burst" to reach anything like a unanimous opinion. In the case now before us I think it fair, on the facts, to conclude that notwithstanding an appeal was made successfully by the plaintiffs in one year, 1917, to reduce the valuation in that year; and as in each and all the years 1915, 1916, 1918 and 1919 no action at all was taken by the plaintiff's respondents to call the valuations for those years in question, they may well be held to have acquiesced in those valuations on the ground that it would or might assist them in selling their lots to prospective purchasers at a very high figure. However that may be the facts are that in all those years, and until the present action was taken, no steps at all were taken by the plaintiff respondent to appeal from the valuations or to call in question the fairness or unfairness of these valuations. The law has provided a very simple method of their doing so, first, by an appeal to the municipal council and then from the determination of that body to the Circuit Court whose judgment was to be final and binding. As I have said, no such appeal was ever taken in the years I have mentioned. Subject to what I have said in the foregoing reasons, I think the Superior Court had no power under art. 50 C.P.C. to entertain the plaintiff respondents' application to set aside the valuations. I concur generally in the reasons and conclusions of Brodeur J. Idington J.—The respondent is the owner of a farm of nearly eighty acres which was subdivided, in 1913 or thereabouts, into lots each of about a tenth of an acre in size and possibly by reason of the subdivision having proved an unprofitable venture, for only some thirty lots were sold, the tenant who had long carried on the farm has been induced to continue farming there despite the subdivision. The market value of the property seems to have increased so rapidly for some years that from haying been bought in July 1911 for the price of $1,000 per arpent, it passed to the respondent in May, 1914, for the price of $2,200 per arpent The assessor or succession of assessors seem to have been induced thereby, and by the price list of the respondent, to raise the assessed value of the whole to the total sum of $528,104.00, in the years 1915, 1916, 1917 and 1918. The respondent never, until 1917, took any of the regular and proper steps provided by statute for complaining against over assessment. In 1917 it did take some steps provided, but what is not clear, for there is nothing relative thereto presented in the case before us, save a certificate of judgment in the Circuit Court, whereby it appears that the learned judge had reduced the assessment to $500.00 per arpent. As the result of that it is argued that the said assessors should have adopted that very low figure for the rolls of 1918 and 1919. A very obvious answer seems to be that, as to 1918, the roll probably was completed by the assessors before the 9th July, 1918, when that judgment was delivered. I am unable to say why, under such circumstances, the respondent did not avail itself of the means provided by law for appealing to the court of revision for the roll was not homologated until the 11th September, 1918. The assessment roll of the assessor for 1919 fixed the entire valuation of said property for that year at $347,578. The respondent does not seem to have taken any appeal against that assessment. The appellant had instituted a suit on the 18th of September, 1917, in the Superior Court, to recover from respondent the taxes in arrear for the years 1913, 1914, 1915 and 1916, making, with interest thereon, the sum of $9,697.60. On the 20th February, 1920, the respondent instituted this action whereby it seeks to have said action lastly referred to joined and that the assessment rolls and collection rolls for the year 1913, 1914, 1915, 1916, 1918 and 1919, be held illegal, irregular and null, ultra vires, and be quashed and annulled. When the case came before Mr. Justice Maclennan for trial in the Superior Court, the case as to the rolls for the years 1913 and 1914, was abandoned, and after hearing the evidence adduced, he maintained the action and adjudged and declared that the valuation and collection rolls of the defendant, appellant, for the years 1915, 1916, 1918 and 1919 are, and each of them is and always has been illegal, irregular, null and ultra vires and are set aside and annulled. Upon appeal therefrom the Court of King's Bench by a majority upheld the said judgment in its entirety, though Mr. Justice Guerin, one of that majority, seems to have had some doubts as to going further than dealing with the claim of partial exemption of the respondent, by reason of the lands in question being farm lands. The said courts seem, as to the facts, to found said judgments upon the excessive valuation by the assessor and as to the law upon the power given by article 50 of the Code of Procedure. As to the facts I cannot, after a perusal of the entire evidence, agree that there is therein anything to support such a drastic judgment which if upheld must lead to great confusion; indeed so great as probably to require legislation to carry on the affairs of the appellant as is intimated by the learned Chief Justice. I, with respect, cannot agree that the 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, applies where there is a specific power given elsewhere, in the statutes relevant to the subject matter involved, supplying an adequate remedy, and indeed evidently intended to be the only remedy to rectify any wrong doing on the part of the assessor of a municipal corporation in the way of under or over valuation. I cannot think that in such like cases resort to this article was ever intended, unless possibly in the cases of actual fraud or ultra vires. And especially would that seem to be the case when, as here, the roll is declared binding when homologated, presumably after hearing any appeals tendered, as they were in some other cases, and the more so when that homologated roll in turn seems to be subject to an appeal to the Circuit Court. I cannot help thinking that this specific code, as it were, eliminates any ground for the interference of the Superior Court under Art. 50, unless in the possible exceptions I have referred to, and by no means do I hold that these exceptions either in law or fact apply to such a case as presented herein. There is no evidence herein to support any charge of fraud relative to the assessment of respondent's property, much less that the whole of these rolls as to every ratepayer were fraudulent. Indeed fraud is not seriously argued. Illegality may cover that or, in a sense, over or under assessment. I will deal presently with the other of said possible exceptions confining myself to the only one that appears herein arguable on the facts. I find the cases relied upon by the court below and counsel before us are as follows:— The case of La Corporation Archiépiscopale Catholique de St. Boniface v. The Town of Transcona[4], was an ordinary appeal to us from the courts below in due course of executing the specific remedy given for just such cases as presented here, If that course had been followed herein, possibly the essence of all involved might have come here if not duly and properly settled by the court of last resort in the province. La Compagnie d'Approvisionnement d'Eau v. La Ville de Montmagny[5]; Rivard v. Corporation de Wickham[6], are, so far as I can see, the only cases in which the court below has ever acted upon such ground as exists herein. In the former case the course of events was rather provoking, for the party aggrieved pursued his specific remedies without desirable results, but that furnishes no foundation for the assertion of a jurisdiction which a court has not. In the latter case the reasoning in the judgment of Pouliot J., who dismissed the application and rested upon a long line of authorities followed up to that time, has my assent as correct. And when we come to the case of Laberge v. La Cité de Montréal[7], we find another basis of right asserted by the appellant, namely the general exemption. In joining in that judgment the late Mr. Justice Cross expressly excludes the case of a mere error in the amount of assessment, and rests his judgment upon the case therein presented of partial exemption created by a statutory provision for a term of years which seems to have arisen out of circumstances very similar to those which gave rise to the partial exemption in question herein. These three cases being all so recent as five or six years before the respondent launched this case, and no prior decisions expressly in point having been cited, has induced me to try and trace, if possible, any previous exercise of the power asserted in them, but I have been unable to find any. I find many cases asserting authority over municipal corporations in many ways, by virtue of said article 50 C.P.C., reaching back for fifty years or more, but nothing analogous to what is involved in that presented by this appeal. The excessive valuation in question herein reminds me of a recent case before us in which judicial authorities passing upon valuation by assessors of a certain property in a city suffering from the same causes as appellant, were found to differ as much as four or five times in regard to the value to be placed upon a certain property. One court thought one hundred dollars an acre excessive, and another thought four or five hundred dollars an acre was not. I cannot, for my part, accept such excessive valuations even if they are the aftermath of a mad race in speculation. But it comes with an ill grace, I submit, on the part of those who have done their part to develop the situation, to refrain from discharging the duty of trying to rectify the results apparent in the assessor's roll year after year and then seeking to overturn the whole basis of the financial structure upon which the affairs of the municipality rest. I do not think, even if the supervising jurisdiction of the courts could be extended so far, it should be exercised under such circumstances as presented. Unless in the cases of fraud or what falls properly within the ultra vires rule, no relief should, I submit, be given to suitors so acting, for in such cases a wise discretion may be properly exercised. However all that may be, I still adhere to the principles upon which we proceeded in the case of Municipality of Macleod v. Campbell[8], cited in argument herein. In that case I expressed my own view that to hold a mere excess of value an illegality such as to render a roll void is quite impracticable. Indeed it would surprise a great majority of rural municipalities to be told that taxes could not be collected because the assessor had assessed far below the actual value. Yet that is, in strict law, quite as illegal as assessing too high. The doing so in either case does not give rise to any application of the doctrine of ultra vires unless in the case of him entitled to claim an exemption. The duty of him claiming it is to bring the claim before the courts entrusted with the jurisdiction of settling the roll or correcting it. But if he fail to do so I am of the opinion that he can resist the collection of taxes imposed in violation of his exemption and that he does not need such relief as sought herein for his protection. The respondent has, I think, on the evidence before us, shewn it is entitled to be taxed on the basis of such exemption, and can insist thereon without being given any such relief as sought herein. I was at first inclined to agree with Mr. Justice Rivard's suggestion in his well considered judgment, if I may be permitted to say so, with which I almost entirely agree, but on reflection I do not think the application of his solution of the problem is necessary herein, though the principle thereof must be observed in determining the amount the appellant is entitled to recover in the suit it has taken. I would therefore allow this appeal and dismiss the respondent's action with costs throughout. Duff J.—The-finding of the learned trial judge is in the following words: Considering that the valuation of the plaintiff's property on the basis of over $6,000 per arpent is and was a fictitious valuation far in excess of its actual or real value and the assessors of the defendant in so valuing plaintiff's property proceeded upon a wrong principle and ignored the real or actual value of said property and thereby exceeded the powers given to said assessors and to the said defendant by its charter and by-law. I am not quite sure whether the learned judge means that for ulterior purposes the assessors and the municipal council had deliberately combined to assess the property in the municipality at a grossly excessive valuation. If this is the proper construction of the finding then I think the evidence is inadequate to support it. There is nothing to shew that either the assessors or the council were actuated by any specific improper motive, such for example, as that suggested in the pleadings, namely, that the statutory limit of the municipal indebtedness should be illegally elevated. An inference that there was such wrongdoing would necessarily be an inference based upon the conclusion reached by the learned trial judge that the valuation was grossly excessive. I am not sure that in this sense the finding is concurred in by more than one of the learned judges of the Court of King's Bench; but assuming that in this sense there are concurrent findings of two courts I should still be forced to the conclusion from a perusal of the evidence and the reasons that there are no adequate grounds for such a conclusion. The question whether or not there has been such impropriety must always be a very delicate one. We have had in this court a very wide experience of the divergent views which people honestly entertain (valuators and the professional men of unquestioned integrity charged with official responsibilities in the matter of valuation for taxation purposes) as to the proper method in particular circumstances of ascertaining "actual value;" and it must be obvious to anybody who gives the matter a moment's thought that the whole subject, both in theory and in practice, is beset with difficulties. The questions, is current price an exclusive test? is a great augmentation or diminution in the number of transactions a merely temporary aberration or the result of factors likely to be permanent? and others of a like nature are questions which may well give officials trying to do their duty the most anxious concern. Everybody knows how tenaciously at the close of a period of inflation people cling to their faith in a restoration of price levels after all legitimate grounds for such faith have disappeared. The respondent's property was in a suburb of Montreal which began to receive the attention of speculators in land as early at least as 1911. Prices had risen with great rapidity and during the years in respect of which the questions agitated in this litigation arise, lands were assessed by the municipality at values based largely upon an estimate made in the years 1913 and 1914. The evidence is that the prices fetched from time to time by sales of small areas formed a starting point from which the valuations were made. It now seems to be quite clear that everybody (the respondent and other speculators and those who purchased lots from them, as well as the officers of the municipality) was over-sanguine and held absurdly extravagant ideas as to the value of the property. But while it may very well be that, as a result of the evidence now offered, the proper conclusion is that $500 an acre was the real value of the property assessed at the rate of $6,000 an acre, it would be quite unfounded to suppose that anybody, the respondent or anybody else, had a suspicion that there was any such disparity between the real value and the assessed value. Indeed property which is now said to have been worth $500 an acre was admittedly sold in 1914 at the price of about $2,500 an acre. A circumstance to which I think weight has not been sufficiently attached in the court below is the circumstance that these valuations which are now attacked were not during all these years impeached by the ratepayers affected by them in appeal to the Circuit Court as provided by the statute. The Court of King's Bench, it may be observed, has concurred with the trial judge in setting aside the rolls in toto. They have proceeded, so the respondents argue, upon the assumption that conscious and intentional overvaluation and violation of duty governed the municipal officers in respect of all the valuations in the municipality. No appeal has been taken against these valuations which are now attacked. No evidence was given of such appeals and I assume that the decisions of the Circuit Court are not impugned. It is not only a fair deduction, it is I think the only legitimate inference, that the views of the municipal officers as indicated by the valuation were not grossly inconsistent with the values which would have been ascribed to the properties affected by the general opinion of those most concerned, namely, the owners who by statute were made personally responsible for the payment of taxes. I do not suggest that it would be fair to infer that a particular assessment was always accepted as a perfectly just assessment but the inference is, I think, a plain one that there was no such disparity between the general opinion as to value and the assessment of the properties as in itself would justify the inference that the municipal officers were consciously departing from their duty and improperly fabricating an assessment roll with fictitious valuations for an ulterior improper purpose. I repeat, that having read with care the evidence and the reasons given by the learned judges in the court below I see no escape from the conclusion that (if the respondents rightly construe the findings of fact) the consideration which in my opinion is the predominant consideration arising from the undisputed facts of this case is one to which sufficient weight has not been attached. It might be that a case of actual fraud would afford an answer to an action for the recovery of taxes. I desire to make it quite clear that I reserve entirely any question as to the right of the respondents if such a case of actual fraud had been established. I observe only that if such a question were raised it would be necessary to consider whether, by the law of the province of Quebec, a plaintiff who had declined to avail himself of the statutory remedy by way of appeal could lie by for years while all sorts of rights were being created on the faith of the assessment roll and then demand as of right that the roll should be set aside in toto without any sort of excuse or explanation of his quiescence. For the present I give no opinion upon the point, nor upon the question whether a finding of actual fraud such as that suggested might not afford an answer to a claim for the payment of taxes. I am, however, unable to say that there is not evidence to support the conclusion of the learned trial judge that the assessors have not observed the principle laid down by the statute, and by that I mean this. I think there is evidence to justify the conclusion that the valuation was so excessive that if competent valuers and a competent municipal council applied their minds to the question of the actual value of the property with anything like a correct appreciation of what is implied in "actual value" they would not have made an assessment in the figures actually arrived at. That is a result quite consistent with the assumption of an absence of bad faith. Such being the state of the facts it is convenient first to address oneself to the question whether you have here a case of legal incompetence. The "Cities and Towns Act," secs. 5256 to 5288 includes provisions dealing with the subject of the values and assessments. Secs. 5696, 5707 and 5708 deal with the authority of the assessor and of the council in relation to the valuation roll. To the assessors is committed the duty of assessing the taxable property of the municipality and to the municipality is committed the duty of hearing and deciding all complaints against valuations made by the assessors and to consider whether or not the roll should be maintained or altered, and authority to revise the same whether complained of or not. It is clearly within the authority of the assessors and the council to consider and to decide upon the valuation of property for the purposes of taxation and to record the result in the valuation roll. Now the Act by art. 5696 expressly provides that the taxable property shall be assessed "according to its real value." It is argued that where there is a departure from this statutory mandate there is a case of want of competence, that the acts of the assessor and the council are ultra vires and ab initio null. That is a conclusion to which I cannot agree. All through the law there runs a distinction between incompetent acts and acts which though competent are wrongful or it may be illegal. Where you have authority to do a certain class of acts coupled with a rule prescribing the manner in which the act is to be done or prohibiting the doing of it in a given way, you may always have the question whether the rule imports a limitation of authority; and whether it does or does not import a limitation of authority is a question to be decided on the construction of the instrument creating the authority viewed in light of the circumstances and the object and purpose for which the authority is given. Now it is quite clear that this statute does not treat as a nullity (it is almost too obvious for remark) a valuation which in fact is not based upon the actual value of the property. The statute does not treat it as a nullity because the statute provides a means for complaining against such a valuation and correcting it. First, there is the right to complain before the municipal council and then from the decision of the municipal council there is a right of appeal to the Circuit Court. If the valuation were a nullity there would be nothing upon which either appeal could operate. I think this applies whatever be the circumstances under which the irregular and wrongful valuation is made. Even if it were shewn that an assessor had overvalued property in consequence of corrupt influence I cannot doubt that it would still be open to the municipality to correct the valuation by resorting to the statutory appeal. It is not conclusive of course on the point of competency or no competency to say that such a valuation is not a nullity because an incompetent act may be only relatively null. For the present I am concerned only in making it clear that there is no case of nullity ab initio, and that, I think, is plain. I think it is also quite clear that there is no case of incompetency because it was the duty of the assessor in the first place to enter the valuation in the valuation roll and in the second place it was the duty of the council to revise it; that is the very thing committed to them by statute. If in performing that duty the statutory rule were consciously disregarded that would be an illegality of a very grave kind. If there is incompetence or negligence such that in effect the statutory mandate is disregarded there may be illegality also, but in neither of these cases is there for that reason alone incompetency in the legal sense. I can entertain no doubt that giving due weight to the provisions for correcting wrong and improper valuations it is quite impossible to hold that in any of these cases there is either legal incompetency or nullity ab initio. The point has been the subject of so much discussion that I think it worth while to refer to a single case to shew the view which heretofore has been taken upon this distinction between incompetency and illegality as these words are found embodied in Quebec legislation. In Déchène v. City of Montréal[9], the Privy Council had to consider a resolution of the corporation of Montreal under sec. 101 of the Montreal charter which authorized the corporation to make an annual appropriation of an amount necessary to meet the expenses of municipal administration during the current year. The self same clause which authorized the appropriation imposed a restriction that such appropriation should never exceed an amount to be ascertained in a manner prescribed by the section. The council of the corporation made an appropriation in excess of the maximum fixed by the section. Proceedings were taken to set aside the resolution and the corporation answered that the proceedings were prescribed in three months by force of a certain statutory provision, sec. 12 of 42-43 Vict., c. 53, which gave to a municipal elector the right in his own name to procure a judicial annullment of municipal proceedings on the ground of illegality and imposed a prescription of three months where the proceeding was within the competence of the corporation. It was contended among other things that the resolution in question being incompetent the prescription did not apply. The promoters of the litigation insisted that the resolution was incompetent at least in so far as the amount of the appropriation exceeded the statutory maximum. By both the Quebec courts and the Judicial Committee it was held that the complaint was a complaint of illegality and not of incompetence. Lord Watson said at p. 644 of the report that the resolution was plainly within their competence, seeing that it exclusively relates to matters committed to the council by statute. In the Court of Queen's Bench Mr. Justice Blanchet, delivering the judgment of the court[10], said:— L'appelant a prétendu de plus, que la prescription de trois mois ne s'applique pas au cas actual parcequ'en adoptant sa résolution l'intimé avait excédé sa jurisdiction. L'article suscité de la charte dit, en effet, que le droit de se plaindre sera prescrit par trois mois et que la résolution sera tenue pour valide pourvu qu'elle soit de la compétence de la corporation. Il ne faut pas confondre ici la question de pouvoir avec la question de compétence; le conseil avait évidemment le droit de fixer son budget, en y portant les sommes nécessaires pour les dépenses de l'année alors prochaine. Ce sujet était entièrement de sa compétence. De ce qu'il aurait inclus une somme qu'il n'avait pas le droit d'y mettre, il ne s'en suit pas que la resolution n'est plus de sa compétence. Il y a bien là une illégalité qui permettrait au tribunal d'intervenir et de retrancher ce qui est illégal de ce qui est légal, mais non pas de mettre de coté toute la résolution. Les illégalités ou les irrégularités commises à ce sujet peuvent être attaquées par les contribuables dans les trois mois fixés par le statut, à l'aide d'un mode spécial de procédure; mais ce délai passé, ces derniers sont absolument déchus de ce droit. La loi leur a donné un control sommaire et efficace sur les actes de leurs mandataires. Mais, comme il est de l'intéret public que les procédes des corporations soient, après un certain temps, tenus pour valides, la législature a voulu que ce délai une fois expiré, il en résulte une déchéance complète, quant au remède spécial qu'elle fournit, puisqu'elle déclare valide et obligatoire tout ce qui a été fait, dans les limites de la compétence du conseil, laissant aux intéressées le recours ordinaire, aux autres remèdes qui peuvent exister. I come now to article 50 C.P.C. This article is one that confers jurisdiction, a jurisdiction which, by the terms of the article itself, is to be exercised subject to the special provisions of the law. It does not profess to give, and it would be an unwarrantable extension of its purport to read it as giving, an unrestricted and unqualified right to any subject of the realm to require the Superior Court to review the proceedings of public and private corporations; nor can it properly be read as giving to each elector or ratepayer in a municipality without regard to the qualifications and conditions laid down by the statutes dealing with municipal institutions the right to invoke such jurisdiction in relation to the proceedings of the municipality; and I think that where in relation to a given municipal proceeding or even a given class of municipal acts a special recourse is given to a specified class of persons as affording a remedy for error or illegality then the Superior Court, in exercising its jurisdiction under Art. 50, is governed by the conditions and the qualifications attached by law to that right of recourse. At all events I think it is quite clear that where a special remedy is given by statute if that remedy sufficiently appears, either from the express terms of the statute creating it or from the nature of the case, to be intended to be the exclusive remedy for those to whom it is given then the jurisdiction of the Superior Court is limited accordingly. It is not necessary, as I have already said, to consider what the remedy of the aggrieved owner may be in a case of actual fraud and I put that case aside. In all other cases whether the valuation be the result of error of judgment or of negligence or of reckless inattention or incompetence the statutory remedy is, in my judgment, the exclusive remedy unless it be, and that is the point to which I will come in a moment, that a right to impeach the assessment is given under Art. 5591 R.S.Q. I think this follows from a consideration of the nature and objects of the procedure itself. The object is to get a valuation of the taxable property of the community for the purpose of enabling the tax rate for special taxes as well for general municipal taxes to be struck as the school rate. Once the roll is complete, that is to say, once all appeals and complaints provided for by statute have been disposed of, the roll becomes the foundation upon which the levying and the collecting of taxes proceeds. It is also that basis which determines the limit placed by the law upon the municipal indebtedness. Now if it be open to any owner of property who has allowed the roll to be closed without taking advantage of the statutory procedure to complain of excessive valuation it is obvious that a very wide door to uncertainty and confusion is opened up. Cases of fraud being eliminated if an assessment is open to attack upon the ground that the assessor "has proceeded upon a wrong principle" it will in practice be a hopeless task to assign a limit to the class of cases which might be entertained by the courts. I think when the legislature provides for the making of a valuation roll and a special procedure for disposing of complaints and then makes the valuation roll the basis of taxation it is implied that all questions of valuation as such are, as between the owner and the municipality, to be considered set at rest when the express statutory remedies made available have been exhausted. I come now to Art. 5591. I am disposed to think than an overvaluation or an undervaluation made through sheer negligence in the sense of neglect on the part of the assessors and of the council to give any consideration to the question of actual value might not improperly be described as an instance of "illegality." I do not think, however, that in such a case of improper valuation the remedy given by Art. 5591 is available to an aggrieved owner because his remedy is explicitly provided for by the section of the "Cities and Towns Act" already referred to and the operation of 5591 for his benefit is excluded impliedly by those provisions. If I am wrong in this however I concur with my brother Brodeur in thinking, as I have already said, that the complaint preferred is a complaint of illegality rather than incompetency and that in so far as the respondent prefers its complaint qua ratepayer that article applies. The conditions governing proceedings under that article would not, however, affect any right the aggrieved owner might otherwise have to resist a claim for taxes on the ground of fraud nor would non-compliance with such conditions be an answer to a proceeding by the Crown in the public interest on the same ground. There remains the argument based upon the municipal charter, s. 28. This section deals with the subject of taxation rather than the subject of valuation. It can afford no basis for impeaching the assessment roll. Nor do I think it is a ground for impeaching the collector's roll except as an answer to a claim for taxes. The contention now raised will be open to the respondents in answer to such a claim. The appeal should be allowed and the action dismissed with costs. Anglin J. (dissenting)—I have had the advantage of reading the carefully prepared opinions of my brothers Brodeur and Mignault. After full consideration of the record, factums and oral argument I am satisfied to accept my brother Mignault's conclusions that the valuations of properties on the impugned assessment rolls were purely fictitious and were made in utter disregard of real value. The case presented is not one mere

La Ville St-Michel v. Shannon Realties Ltd.

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La Ville St-Michel v. Shannon Realties Ltd.

Court headnote

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Related cases

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