Immeubles Port Louis Ltée v. Lafontaine (Village)

Immeubles Port Louis Ltée v. Lafontaine (Village)
Collection
Supreme Court Judgments
Date
1991-02-28
Report
[1991] 1 SCR 326
Case number
20942
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty
On appeal from
Quebec
Subjects
Civil procedure
Municipal law
Notes
SCC Case Information: 20942
Decision Content
Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326
Les Immeubles Port Louis Ltée Appellant
v.
Corporation municipale du Village
de Lafontaine Respondent
indexed as: immeubles port louis ltée v. lafontaine (village)
File No.: 20942.
1990: April 27; 1991: February 28.
Present: Lamer C.J.* and La Forest, L'Heureux‑Dubé, Sopinka and Gonthier JJ.
on appeal from the court of appeal for quebec
Municipal law ‑‑ Loan by‑laws ‑‑ Insufficiency of public notices convening electors ‑‑ Direct action in nullity ‑‑ Disputed by‑laws in effect for over five years ‑‑ Whether Superior Court had discretion to dismiss action for lateness ‑‑ If so, whether court validly exercised its jurisdiction -- Municipal Code, arts. 684a, 758 ‑‑ Code of Civil Procedure, R.S.Q., c. C‑25, art. 33.
Civil procedure ‑‑ Direct action in nullity ‑‑ Disputed municipal by‑laws in effect for over five years ‑‑ Time within which remedy available ‑‑ Discretionary nature of remedy ‑‑ Code of Civil Procedure, R.S.Q., c. C‑25, art. 33.
Between 1969 and 1978 the respondent adopted loan by‑laws to defray certain local improvement costs. Each of the by‑laws provided that part of the costs of certain work would be covered by a special tax on the owners of property in a given sector of the municipality. In 1977 the appellant purchased land located in a sector affected by the loan by‑laws. The contract of sale provided that the appellant undertook to pay general and special municipal taxes, including "all future instalments of special taxes, the payment whereof has been spread over a number of years". In 1983 the appellant brought an action under art. 33 C.C.P. to quash the loan by‑laws and recover taxes wrongly paid for 1978 to 1983, arguing mainly that the respondent had not complied with the necessary formalities for adoption of these by‑laws. Article 758 of the Municipal Code provided that in order to come into force and effect, a loan by‑law had to be approved by "the municipal electors who are owners of taxable immoveables" at a public meeting held on or before the thirtieth day after the date of the passing of the by‑law, and that such electors must have received a "notice of convocation of at least ten clear days". The lots owned by the appellant were not even mentioned in most of the disputed notices of convocation. The Superior Court dismissed the direct action in nullity for lateness. The trial judge held that despite the thirty‑year prescription of the direct action in nullity, the Superior Court can exercise its discretion and refuse to intervene if the complainant has demonstrated a lack of diligence in making his complaint. The judge concluded that the action was not brought within a reasonable time as the clause in the contract of sale and the payment of improvement taxes showed that the appellant had known of the by‑laws for over five years. The Court of Appeal, in a majority judgment, affirmed the Superior Court judgment.
Held: The appeal should be dismissed.
The adoption of the disputed by‑laws is not in accordance with the provisions of the Municipal Code. Both before and after the 1979 legislative amendment, art. 684a empowered the respondent to impose a special tax on the appellant without assuming part of the cost, but the respondent did not comply with the requirements of art. 758 regarding public notices convening electors. Most of the disputed notices did not indicate the appellant's immovable property as being among those to which the loan by‑laws applied. The description contained in the notices was therefore clearly insufficient. By not giving it notice of a meeting, the municipality denied the appellant its right to be heard and neglected to seek and obtain the approval required by law. The group of owners of taxable immovable property was an essential part of the regulatory process.
The insufficiency of the public notices convening electors is a serious illegality relating to the municipality's failure to observe the formalities required by law. This illegality involves observance of the audi alteram partem rule and the exercise of the appellant's voting right. It is thus beyond question that the appellant could attack the validity of the loan by‑laws through a direct action in nullity, since this is neither a mere irregularity nor a formal defect. However, apart from a case where there is a total absence of jurisdiction, a judge may refuse to grant the relief sought if, in view of the circumstances, he considers it justified to do so. This discretionary power to grant or deny such a remedy is inherent in the reforming jurisdiction of the Superior Court pursuant to art. 33 C.C.P. As the remedy is discretionary in nature, and despite the thirty‑year prescription provided for in art. 2242 C.C.L.C., the direct action in nullity must be brought within a reasonable time. The requirement of a reasonable time is still present under common law principles in the exercise of this remedy.
A judge hearing a direct action in nullity must exercise his power of review in a judicial manner and observe the established principles of law. He cannot act in a purely arbitrary manner. In exercising his discretion, the judge must take into account a number of factors, including the nature of the disputed act and the nature of the illegality committed and its consequences. He must also take into account the causes of the delay between the disputed act and the bringing of the action. The nature of the right relied on and the plaintiff's behaviour are other factors relevant to the exercise of the Superior Court's discretionary power. The plaintiff may be called on to justify his inaction so that the Superior Court can assess whether the delay in exercising his right was reasonable.
In this case the trial judge was right in exercising his discretion and dismissing the action in view of the circumstances and the relative importance of the nullity relied on. The case did not involve a lack of jurisdiction or even a defect affecting the overall exercise by the respondent of its powers. The matter was completely within the respondent's authority. What was actually involved was rather a defect in the exercise of this power, the failure to give prior notice to certain persons. These were the only persons affected, and in this sense the failure can be described as a relative nullity. Finally, it was open to the trial judge in exercising his discretion to take the appellant's behaviour into account including its lack of diligence in exercising its rights.
Cases Cited
Referred to: Commission de la santé et de la sécurité du travail du Québec v. Pillin, [1983] C.A. 277; Cité de Sillery v. Sun Oil Co., [1962] Que. Q.B. 914, aff'd [1964] S.C.R. 552; Comité de citoyens et d'action municipale de St‑Césaire Inc. v. Ville de St‑Césaire, [1985] C.S. 35, aff'd [1986] R.J.Q. 1061 (C.A.); City of Beaconsfield v. Bagosy (1974), [1982] J.M. 92; Trudeau v. Devost, [1942] S.C.R. 257; Dechène v. City of Montreal, [1894] A.C. 640; Shannon Realties, Ltd. v. Ville de St. Michel, [1924] A.C. 185; Donohue Bros. v. Corporation of the Parish of St. Etienne de La Malbaie, [1924] S.C.R. 511; Tremblay v. Corporation des Éboulements (1923), 35 Que. K.B. 474; Corporation de la paroisse de St‑Joseph de Maskinongé v. Boucher (1926), 41 Que. K.B. 359; Ville de La Tuque v. Desbiens (1919), 30 Que. K.B. 20; Abel Skiver Farm Corp. v. Town of Ste‑Foy, [1983] 1 S.C.R. 403; Montreal Light, Heat & Power Cons. v. City of Westmount, [1926] S.C.R. 515; Soeurs Dominicaines de l'Enfant‑Jésus v. Corporation de la paroisse de St‑Colomb‑de‑Sillery (1928), 45 Que. K.B. 101; Brown v. Corporation of the Village of Asbestos (1929), 67 C.S. 531; Thériault v. Corporation de la Paroisse de Notre‑Dame du Lac (1903), 9 R. de J. 326; Ville de Beaconsfield v. Brunet (1920), 31 Que. K.B. 196; Corporation de la Rivière du Gouffre v. Larouche (1925), 39 Que. K.B. 267; Corporation du village de St-Ulric de la Rivière Blanche v. Corporation du comté de Matane (1924), 38 Que. K.B. 247; Corporation de St‑Joseph de Beauce v. Lessard, [1954] Que. K.B. 475; Beauchamp v. Cité d'Outremont, [1970] C.A. 286; Air Canada v. City of Dorval, [1985] 1 S.C.R. 861; Town of St. Louis v. Citizens Light and Power Co. (1903), 13 Que. K.B. 19; Corporation municipale du Village de Ste‑Anne‑du‑Lac v. Hogue, [1959] S.C.R. 38; Gravel v. City of St‑Léonard, [1978] 1 S.C.R. 660; Théberge c. Métabetchouan (Town), [1987] 2 S.C.R. 746; Wiswell v. Metropolitan Corporation of Greater Winnipeg, [1965] S.C.R. 512; Eaton v. St. James Assiniboia Community Committee, [1974] 2 W.W.R. 342; Boily v. Corporation de St‑Henri de Taillon (1920), 61 S.C.R. 40; Desy v. Corporation de St‑Constant (1923), 36 Que. K.B. 202; Three Rivers Boatman Ltd. v. Conseil canadien des relations ouvrières, [1969] S.C.R. 607; Attorney General of Quebec v. Farrah, [1978] 2 S.C.R. 638; Vachon v. Attorney General of Quebec, [1979] 1 S.C.R. 555; Côté v. Corporation of the County of Drummond, [1924] S.C.R. 186; Sidbec‑Dosco Inc. v. Commission de la santé et de la sécurité du travail du Québec, [1987] R.J.Q. 197; Québec (Procureur général) v. Giroux, [1988] R.J.Q. 1774; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; Homex Realty and Development Co. v. Corporation of the Village of Wyoming, [1980] 2 S.C.R. 1011; Regina v. Aston University Senate, Ex parte Roffey, [1969] 2 Q.B. 538; Regina v. Herrod, Ex parte Leeds City District Council, [1976] Q.B. 540; The Queen v. Sheward (1880), 5 Q.B.D. 179, aff'd (1880), 9 Q.B.D. 741 (C.A.); Rex v. Glamorganshire Appeal Tribunal, Ex parte Fricker (1917), 33 T.L.R. 152; Rex v. Stafford Justices, Ex parte Stafford Corporation, [1940] 2 K.B. 33; Soeurs de Jeanne‑d'Arc v. Aqueduc de Sillery (1929), 47 Que. K.B. 235; Samson v. Ville de St‑Bruno de Montarville, [1981] C.A. 193; Corporation municipale de la Cité de Sept‑Iles c. Rioux, [1985] C.A. 295; Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110.
Statutes and Regulations Cited
Act respecting Municipal Taxation, R.S.Q., c. F‑2.1 [formerly S.Q. 1979, c. 72], s. 3.
Cities and Towns Act, R.S.Q., c. C‑19, ss. 11, 397 et seq.
Civil Code of Lower Canada, art. 2242.
Code of Civil Procedure, R.S.Q., c. C‑25, arts. 33, 453, 834 et seq.
Municipal Code, arts. 14, 684a [ad. 1963, c. 65, s. 8; am. 1968, c. 86, s. 38; repl. 1979, c. 36, s. 49], 758 [repl. 1963, c. 65, s. 10; am. 1975, c. 82, s. 35], 697 [am. 1946, c. 55, s. 14; 1950, c. 74, s. 11; 1979, c. 72, s. 291].
Municipal Code of Québec, R.S.Q., c. C‑27.1, arts. 689 et seq., 979.
Authors Cited
Brun, Henri et Guy Tremblay. Droit constitutionnel, 2e éd. Cowansville, Qué.: Éditions Yvon Blais Inc., 1990.
Chevrette, François et Herbert Marx. Droit constitutionnel. Montréal: Presses de l'Université de Montréal, 1982.
de Smith, S. A. Judicial Review of Administrative Action, 4th ed. By J. M. Evans. London: Stevens & Sons, 1980.
Dicey, Albert Venn. Introduction to the Study of the Law of the Constitution. London: Macmillan, 1885.
Dussault, René and Louis Borgeat. Administrative Law: A Treatise, 2nd ed., vol. 4. Translated by Donald Breen. Toronto: Carswells, 1990.
Evans, J. M. et al. Administrative Law: Cases, Text, and Materials, 3rd ed. Toronto: Emond‑Montgomery, 1989.
L'Heureux, Jacques. Droit municipal québécois, t. 2. Montréal: Wilson & Lafleur/SOREJ, 1984.
Le Dain, Gerald E. "The Supervisory Jurisdiction in Quebec" (1957), 35 Can. Bar Rev. 788.
Pépin, Gilles et Yves Ouellette. Principes de contentieux administratifs, 2e éd. Montréal: Éditions Yvon Blais Inc., 1982.
Rousseau, Gilles. "Aspects contentieux de la résolution et du règlement en droit municipal" (1986), 46 R. du B. 627.
Théroux, Patrick. "La notion de délai raisonnable dans l'exercice d'un recours par voie d'action directe en nullité sous l'article 33 C.p.c.". Dans Formation permanente du Barreau du Québec, Développements récents en droit administratif, vol. 2. Cowansville, Qué.: Éditions Yvon Blais Inc., 1989.
Wade, H. W. R. Administrative Law, 6th ed. Oxford: Clarendon Press, 1988.
APPEAL from a decision of the Quebec Court of Appeal, [1988] R.J.Q. 1239, 23 Q.A.C. 173, affirming a judgment of the Superior Court, J.E. 85‑474. Appeal dismissed.
Jean‑Jacques Rainville and Mario St‑Pierre, for the appellant.
Stéphane Sansfaçon and Albert Prévost, for the respondent.
//Gonthier J.//
English version of the judgment of the Court delivered by
Gonthier J. -- This case concerns, first, the legal consequences of a municipal corporation's failure to give certain owners of lots affected the required notices of the adoption of loan by‑laws to cover local improvements, and second, the action in nullity under art. 33 of the Code of Civil Procedure, R.S.Q., c. C-25, the time in which it can be exercised and the discretion existing in this regard.
I -‑ Facts and Proceedings
Between 1969 and 1978 the respondent adopted various loan by‑laws to defray certain local improvement costs. They concerned chiefly sewer, water supply and roadway work. Each of the by‑laws provided that part of the costs of certain work would be covered by a special tax on the owners of property in a given sector of the municipality, including the appellant.
In 1977 the appellant purchased immovable property in the respondent's village. This land was located in a sector affected by the loan by‑laws. No building had been built or was served by the municipal water supply or sewer work which was the subject of the by‑laws. The contract of sale contained the following clause:
The present Sale is thus made subject to the following terms and conditions, which the Purchaser binds and obliges itself to fulfil, namely:--
. . .
2. To pay all taxes and assessments affecting the said property, both municipal and school, general and special, and including all future instalments of special taxes, the payment whereof has been spread over a number of years, as and from the Thirtieth day of September, Nineteen Hundred and Seventy‑Seven. [Emphasis added.]
Between 1978 and 1983 the appellant paid the basic municipal taxes and the additional taxes for local improvements. The taxes in the latter category totalled $136,354.46.
In 1983 the appellant brought an action under art. 33 of the Code of Civil Procedure to quash the loan by‑laws and recover taxes wrongly paid for 1978 to 1983. It argued mainly that the respondent had not complied with the necessary formalities for adoption of the said by‑laws. It added that the respondent had abused its taxing powers and that it had paid the taxes for which it was claiming reimbursement by error of law and solely in reliance on the tax bills it had been sent.
In defence the respondent contended that the various loan by‑laws challenged by the appellant had been adopted for municipal infrastructure work affecting the appellant's property; that it had been aware of these facts for many years and had never objected; and that the notices given by the respondent concerning the by‑laws adopted were sufficient and the action was belated.
The Superior Court dismissed the action, J.E. 85-474, and its decision was affirmed by the Court of Appeal, [1988] R.J.Q. 1239.
II -‑ Applicable Legislation
The legislative provisions necessary to decide this case are arts. 684a (before and after the 1979 amendment) and 758 (before and after the 1975 amendment) of the Municipal Code as well as art. 33 of the Code of Civil Procedure.
Municipal Code
Article 684a determined the municipal council's power to impose a special tax to pay for municipal works. Before the legislative amendment of 1979 it read as follows:
684a. The council may impose the special tax for the payment of municipal works of any kind, including works of maintenance, according to either the municipal valuation or the area or the frontage of the taxable real estate subject to such tax. In the case of lots that are situated at a street corner or are not rectangular, the council may fix the frontage for assessment purposes, taking into account both frontage and area.
The council may also charge the cost of such works either entirely to the corporation or to both the corporation and the ratepayers of one or more portions of the municipality, in the proportions determined by the by‑law.
After 1979 art. 684a (the substance of this provision is now contained in art. 979 of the Municipal Code of Québec, R.S.Q., c. C‑27.1) read as follows:
684a. The council may impose the special tax for the payment of municipal works of any kind, including works of maintenance, according to either the municipal valuation or the area or the frontage of the taxable real estate subject to such tax. In the case of lots that are situated at a street corner or are not rectangular, the council may fix the frontage for assessment purposes in the manner it deems appropriate.
The council may also charge the cost of such works either entirely to the corporation or to both the corporation and the ratepayers of one or more parts of the municipality or entirely to the ratepayers of one or more parts of the municipality, in the proportions determined by the by‑law. [Emphasis added.]
Article 758 laid down procedures for making corporation loan by‑laws known to the public. Until 1975 it provided:
758. 1. Corporation loans, by a bond issue or otherwise, and issues of bonds, in payment or for aid, are effected only under a by‑law to that effect which, in order to come into force and effect, must be approved by the municipal electors who are owners of taxable immoveables, in accordance with this article, and subsequently authorized by the Minister of Municipal Affairs.
2. A public meeting of the municipal electors who are owners of taxable immoveables shall be held after the passing of such by‑law, at the place, on the day and at the time fixed by the council for such purpose.
3. Such meeting shall be held between seven and ten o'clock in the evening, on or before the thirtieth day after the date of the passing of the by‑law, after the secretary‑treasurer has given a notice of convocation of at least ten clear days. [Emphasis added.]
In 1975 an amendment to art. 758 (An Act to amend the Municipal Code, S.Q. 1975, c. 82, s. 35) introduced para. 4, which read as follows:
4. The public notice must mention:
a) the number, the title and the object of the by‑law and the date of its adoption by the council; in addition, when the by‑law imposes a special tax on the immovables of one sector or zone of the municipality, excluding all or some other zones or sectors, the notice must clearly describe the perimeter of such sector or zone, using, whenever possible, street names or road names or numbers, as the case may be;
Code of Civil Procedure
33. Excepting the Court of Appeal, the courts within the jurisdiction of the Legislature of Québec, and bodies politic and corporate within Québec are subject to the superintending and reforming power of the Superior Court in such manner and form as by law provided, save in matters declared by law to be of the exclusive competency of such courts or of any one of the latter, and save in cases where the jurisdiction resulting from this article is excluded by some provision of a general or special law.
III -‑ Judgments of Courts Below
Superior Court
Michaud J. first noted that under the Municipal Code the action to annul a municipal by‑law for illegality is subject to a three‑month prescription, while the direct action in nullity under art. 33 of the Code of Civil Procedure is subject to the thirty‑year prescription of art. 2242 of the Civil Code of Lower Canada.
He observed that the appellant had brought the action over five years after the last disputed by‑law was adopted and had bought its property knowing of the special taxes, as indicated by the specific clause in the deed of sale. Further, he pointed out that the appellant even wrote the municipality to ask how it could take better advantage of the municipal services.
The trial judge then said that despite the thirty‑year prescription of the direct action in nullity, the Superior Court can exercise its discretion and refuse to intervene if the complainant has demonstrated a lack of diligence in making his complaint. After citing various authorities, in particular Commission de la santé et de la sécurité du travail du Québec v. Pillin, [1983] C.A. 277, Cité de Sillery v. Sun Oil Co., [1962] Que. Q.B. 914, aff'd [1964] S.C.R. 552, and Comité de citoyens et d'action municipale de St‑Césaire Inc. v. Ville de St‑Césaire, [1985] C.S. 35, aff'd [1986] R.J.Q. 1061 (C.A.), the judge concluded that the action in nullity must be brought within a reasonable time and that it was obviously late in the case at bar. He added that granting annulment more than five years after the most recent by‑law had taken effect would compromise the stability of municipal finances.
In the view of the trial judge, the letters sent to the municipal corporation by the appellant, the clause in the contract of sale and the payment of improvement taxes tend to show that the appellant knew of the by‑laws long before it brought its action. Consequently, the fact of waiting such a long time before taking action constitutes a tacit waiver of its right to object to the by‑laws. He accordingly dismissed the action.
Court of Appeal
Lévesque J. (ad hoc)
Lévesque J. reduced the case to two issues which the Superior Court judge did not have to consider in depth (at p. 1240):
[translation] 1. Are the disputed by‑laws ultra vires the Municipal Code or are they at least applicable to the appellant?
2. Is the insufficiency of the public notices convening electors a sufficient ground for the Superior Court to intervene and quash the disputed by‑laws?
On the first point, Lévesque J. concluded that the by‑laws were authorized by art. 684a of the Municipal Code, not art. 697 as suggested by the appellant. He said that the Municipal Council's discretionary power could not be reviewed in the absence of fraud or a serious breach of the law. Lévesque J. added that the primary purpose of the immovable property was residential and that this had continued. It was therefore reasonable for the municipal authorities to provide for an extension of services to the appellant's immovable property, and the latter would benefit from this. The purpose of the work was reasonable, since it was to serve a sector in the more or less long term and also to be used in its development.
Ruling on the question of the sufficiency of the public notices, the judge cited City of Beaconsfield v. Bagosy (1974), [1982] J.M. 92, which recognized that insufficient notice is a good reason for setting aside a by‑law. Lévesque J. stated that the insufficiency of the notices was not an absolute cause of nullity but a unique occurrence which might be the basis for the exercise of judicial discretion.
He noted that in the case at bar all the by‑laws had been adopted over five years before, the work done, the bonds issued and the taxes paid without protest. Furthermore, the appellant had not given any reasons for its delay in bringing an action and the reference to taxes in the deed of sale constituted a presumption of knowledge. He considered that the trial judge had correctly exercised his discretion and upheld his decision that the appellant had waived its right to raise the insufficiency of the notices.
Tyndale J.A.
Without ruling on the merits, Tyndale J.A. considered the action to be belated and like Lévesque J. dismissed the appeal.
Jacques J.A., dissenting
Jacques J.A. first mentioned that the statute requires that the notices describe the "owners of taxable immoveables" adequately; and the lots owned by the appellant are not mentioned in four of the disputed notices (by‑laws 96, 104, 117 and 135). By‑law 70 cannot be given effect as the failure to hold a meeting within thirty days vitiated the proceeding. In his opinion these illegalities were sufficient to shift the burden of proof to the respondent corporation. The judge noted that City of Beaconsfield v. Bagosy, supra, had already established that a notice is a necessary prerequisite to the validity of a zoning by‑law, not merely an irregularity. At page 1244, he wrote:
[translation] I consider that the same is true regarding the imposition of a land tax on immovable property which has not been mentioned in the public notice to the municipal electors who own taxable immovable property. In that case the by‑law is not enforceable with respect to the omitted immovable property, though it may be with respect to the property mentioned in the notice.
Jacques J.A. noted that the evidence accepted by the trial judge could not in any way suggest acquiescence, since there must be express or presumed knowledge of what is being acquiesced in. Finally, he concluded that the delay was not excessive and did not constitute a tacit waiver, if it is compared with the five‑year time limit set by the legislature for prescription of the action to recover wrongly paid taxes. Further, this delay causes no prejudice to the municipality, whose only obligation is to reimburse money it should not have collected. He was thus of the view that the right to reimbursement of wrongly paid money took priority over the stability of municipal finances.
IV -‑ Issues
The issues may be summarized as follows:
1.Were the by‑laws adopted in accordance with the law?
(a)Does art. 684a empower the respondent to impose a special tax on the appellant without assuming part of the cost?
(b)Did the respondent comply with the legal requirements regarding the notices?
2.What are the legal consequences of the insufficiency of the public notices convening electors?
3.In view of the nature of the illegality committed, did the Superior Court have discretion to dismiss a direct action in nullity on the grounds that it was late?
4.If so, did the Superior Court validly exercise its discretion in the circumstances of this case?
I will examine the nature of the alleged defect and its legal consequences, namely whether it can be a basis for judicial review. I will then discuss the nature of the remedy applicable in the circumstances.
V -‑ Analysis
A. Were the Disputed By‑laws Adopted in Accordance with the Law?
1. Article 684a of the Municipal Code
In the Court of Appeal the appellant raised an argument which it has since abandoned. It claimed that the respondent's power to impose a special tax rested on art. 697 of the Municipal Code. That article is more restrictive than art. 684a of the Municipal Code. The Court of Appeal rejected this argument and in this Court the appellant admitted that the respondent was acting pursuant to art. 684a. On this basis, it is now disputing the allocation of costs made by the corporation, which it says was not in accordance with the article. In its submission, the provision does not allow the corporation to impose a special tax without assuming at least part of the financial burden. The appellant relies on the legislative amendment of 1979, which added to the second paragraph that the costs could be charged "entirely to the ratepayers of one or more parts of the municipality", and on the legislature's silence on this point prior to the amendment. It thus argues that at the time the disputed by‑laws were adopted the corporation had a duty to assume at least part of the financial burden. Its argument assumes that the article is divided into two parts, the first dealing with the bases of taxation and the second with the way in which the cost is to be allocated.
This argument is no more valid than that made in the Court of Appeal. Article 684a as it read before the 1979 amendment clearly authorizes in its first paragraph the imposition of a special tax and leaves open the choice of several bases of allocation: the municipal valuation, the area and the frontage of the taxable real estate subject to the tax. There is no mention at all of any contribution by the corporation. This possibility is only referred to in the second paragraph, beginning with the words "The council may also charge the cost of such works . . .". (Emphasis added.) I do not agree with the way the appellant reads the provision or with the resulting division. The article as a whole sets out the allocation of costs and the second paragraph, by the insertion of the word "also", confers additional powers in the matter. The article first contemplates payment by the owners of immovable property, and second deals with the variations on this procedure. The 1979 amendment merely clarified a power which the municipality already had under the first paragraph. This argument is rejected.
2. Lack of Notice to the Owners of Lots P‑215a and P‑237
The appellant argues that the respondent's loan by‑laws were adopted without compliance with the essential formalities provided for this purpose in the Act as regards notice, thereby denying the appellant its right to be heard. For the first five by‑laws, namely by‑laws Nos. 70, 77, 96, 104 and 117, adopted between January 22, 1969 and July 31, 1975, the said formalities were contained at the time in art. 758 of the Municipal Code. Paragraph 1 specified that the by‑law "in order to come into force and effect, must be approved by the municipal electors who are owners of taxable immoveables". Such approval was to be given at a public meeting and, under para. 3, the meeting was to be held "on or before the thirtieth day after the date of the passing of the by‑law", and the electors were to have received "notice of convocation of at least ten clear days". The Act accordingly provided that the group of owners of taxable immovable property was an essential part of the regulatory process. The notice of convocation to the owners concerned was to allow them to have an opportunity to present their views at a meeting of owners held with the mayor present. As to by‑law No. 135 adopted on May 23, 1978, the Council also had to comply with the conditions set out in art. 758(4), that is, provide a clear description of the area covered.
Most of the disputed public notices of convocation do not indicate the appellant's immovable property as being among those to which the loan by‑laws apply. Like the judges of the Court of Appeal, I consider that the description contained in the public notices was clearly insufficient and did not meet the conditions of art. 758 of the Municipal Code. The respondent breached its obligation to inform and hear the appellant when it adopted the by‑laws, thereby infringing the Act and the audi alteram partem rule.
B. The Legal Consequences of the Insufficient Notices
The Council's jurisdiction is not at issue as such: what is in question is an aspect of the exercise of its powers, namely failure to comply with a legal prerequisite, that of prior notice to the owners of certain affected lots. Is this more than a mere irregularity, because it affects an important right, that of being informed and heard and being able to participate in a vote? And since this right is attached to certain persons and affects them alone, can it be the subject of a waiver by them?
The answer to these questions is important because, as we shall see, it may determine the remedy available and consequently the procedure for obtaining the remedy to which it gives rise. The decision to be made on the appeal turns on this. For a proper understanding of the matter, one must first identify the principal possible infringements of the taxpayer's rights, their nature and the classification made of them by our courts, as well as the remedies which the taxpayer has obtained in each case. It is important in this analysis to bear in mind the distinction between the right and the remedy, as was so aptly noted by de Smith in Judicial Review of Administrative Action (4th ed. 1980), at p. 422:
Whether the tribunal lacked jurisdiction is one question; whether the court, having regard to the applicant's conduct, ought in its discretion to set aside the proceedings is another. The confused state of the present law is due largely to a failure to recognise that these are two separate questions.
1. Illegalities: Ultra Vires or Irregularities
First we may note that the case law classifies these infringements in terms of the remedies provided in our legislation, depending on whether it is a remedy to quash conferred by municipal legislation or one involving the superintending and reforming power of the superior courts. Articles 689 et seq. of the Municipal Code of Québec, like arts. 397 et seq. of the Cities and Towns Act, provide a remedy to quash certain municipal acts for illegality and make it subject to a three‑month prescription. Nevertheless, the courts have held that failure to exercise this remedy did not have the effect of removing all illegalities, and they have established categories of defects which come within the superintending power of the Superior Court. In an article titled "Aspects contentieux de la résolution et du règlement en droit municipal" (1986), 46 R. du B. 627, Professor Gilles Rousseau makes a detailed study of the distinctions developed by the courts to penalize the most serious illegalities where the right to the special remedy has expired. At page 651, he writes:
[translation] Very quickly in the early part of the century the courts, after accepting that certain defects could be raised after the time limit, were consequently obliged to divide the illegalities and identify those which crossed the line and those which did not. In this way an initial distinction was made between illegality, including formal defects and irregularities, and cases of ultra vires.
Our courts have admitted the direct action in nullity and the application for a declaratory judgment in matters of ultra vires. With time, the availability of these remedies has been extended to certain defects which do not pertain to the lack of initial jurisdiction. It has thus become more difficult to define the limits of the ultra vires concept. The cases contain many refinements the meaning of which is not constant and varies with the context in which they are used, such as absolute or relative nullity, abuse and excess of power or simple illegalities, formal defects or irregularities.
At the outset, these distinctions between various types of illegality were used to decide on the proper remedy and make it possible to extend the deadline for objecting. Professor Rousseau discusses the utility of the distinctions based on the nature of the illegality. At pages 652‑53 of the article cited above, he notes:
[translation] The importance which the courts attach to the distinction is bound up with the special seriousness of the ultra vires defect: the general idea is that it justifies an expansion and extension of the objection. The remedies available from general civil law, principally the action in nullity but also now the application for a declaratory judgment, may be used despite the existence of the special remedies to quash; they are still open regardless of whether the three‑month time limit assigned to them has expired; the possibility of invoking the nullity of a municipal decision as a defence or exception has sometimes been associated with ultra vires; according to certain recent decisions, the presence of excess of jurisdiction or ultra vires still allows the action in nullity to be brought any time during the thirty‑year period provided for by general civil law (art. 2242 C.C.), while if the disputed decision is instead affected by abuse of power, the court may exercise its discretion and dismiss the action even if it is within this time limit. Finally, the conditions applicable to the plaintiff or concerning the interest required (art. 55 C.C.P.) are made more flexible: ultra vires is a basis for the remedies exercised by the municipal taxpayers or electors under art. 33 C.C.P., even if they are not able to show special or discrete damage.
As to the means of objecting, the distinction between illegality and ultra vires has chiefly been used to uphold an objection for a formal defect within three months and to free from this limitation an action alleging ultra vires or lack of jurisdiction.
This diverse use of the concepts by the courts involves a confusion between the right and the remedy, which underlies the appellant's argument that since the case at bar concerns an absolute nullity, the Superior Court has no discretion to dismiss the action on the ground that it is late.
While it is true that some judges have distinguished between absolute and relative nullity, this was chiefly to enable serious illegalities to be penalized beyond the time limit and make challenges to mere formal defects and irregularities subject to a short prescription period. None of the judgments cited by the appellant denies the court's discretion to dismiss the action, even when it is brought within the thirty‑year prescription period, if the court still considers that it is belated.
Let us look more closely at the case law, the classification it has made of infringements of taxpayers' rights and the consequences it has attached thereto. "Illegality" is a generic term covering any act not in accordance with the law. In Trudeau v. Devost, [1942] S.C.R. 257, Taschereau J. said at p. 265: [translation] "An ultra vires resolution is illegal but an illegal resolution is not necessarily ultra vires." In that case this Court held that the direct action in nullity was only available if the act was ultra vires At page 262, it said:
[translation] The courts have unanimously held, and it is now well established, that in a case of illegality any taxpayer may have recourse to the special procedure provided by the law within the stipulated time limits, but that where ultra vires acts are concerned there is always the remedy under art. 50 of the Code of Civil Procedure to have the courts declare an absolute nullity. The lack of jurisdiction brings about this absolute nullity . . . Dechène v. City of Montreal, [1894] A.C. 640; Toronto Railway Co. v. Corp. of Toronto, [1904] A.C. 809; Shannon Realties Ltd. v. Ville de St-Michel, [1924] A.C. 185; Donohue Bros. v. La Malbaie, [1924] S.C.R. 511. [Emphasis in original.]
It was thus not enough to allege illegality, there also had to be proof of an ultra vires act for a party to be entitled to go beyond the special procedures provided for objections to the acts of municipal corporations. In Dechène v. City of Montreal, [1894] A.C. 640, the Privy Council held that a motion to quash was the proper remedy and dismissed the direct action in nullity to penalize a mere illegality described as an irregularity. Thirty years later, in Shannon Realties, Ltd. v. Ville de St. Michel, [1924] A.C. 185, the same court repeated this rule in affirming a judgment of this Court. Use of the direct action in nullity was ruled out for challenges to valuations made on erroneous principles or by faulty methods because the law had created special mechanisms for challenges by way of appeal. Lord Shaw noted at pp. 194‑95:
It follows that the appeal made to art. 50 of the Civil Procedure Code Act fails, not because a remedy has been refused but because the remedy expressly given and prohibitively fenced has been ignored.
On the other hand, Mignault J. in Donohue Bros. v. Corporation of the Parish of St. Etienne de La Malbaie, [1924] S.C.R. 511, concluded that there was excess of jurisdiction and a right to employ the direct action in nullity in respect of a valuation roll in which the corporation had valued machinery as an integral part of a mill contrary to what was prescribed by law. Mignault J. t