May 10, 2019
500-09-027032-176, 500-09-027042-175, 500-09-027043-173
Dutil, Healy, Gagné
Appeals from a judgment of the Superior Court declaring the by-laws of the cities of Gatineau and Terrebonne governing interventions by telecommunication and broadcasting companies on their territories and imposing fees for such interventions to be constitutionally invalid, inapplicable, and inoperative and dismissing applications for restitution of prestations. Dismissed. Applications for leave to appeal de bene esse. Allowed.
The trial judge deemed that the pith and substance of the by-laws at issue concerned the planning, construction, placement, maintenance, and preservation of telecommunication networks. After rejecting the double aspect doctrine, she found that this case fell within the jurisdiction of Parliament, not cities, and that the by-laws were therefore invalid. Upon taking some of the particularities of the case into consideration, the judge refused to order restitution of the costs paid to the cities in accordance with the provisions of the by-laws deemed to be unconstitutional. In her view, the respondent companies would have paid fees in any event, under prior by-laws, the Telecommunications Act (S.C. 1993, c. 38), or judgments rendered by the Canadian Radio-television and Telecommunications Commission (CRTC).
In this case, because the by-laws at issue were repealed, the appeal by the Attorney General of Quebec became moot. The Court is of the view that, in light of the applicable principle of deference and the criteria set out in Borowski v. Canada (Attorney General), (S.C. Can., 1989-03-09), SOQUIJ AZ-89111035, J.E. 89-499,  1 S.C.R. 342, it will not rule on the merits of the appeal.
As for the appeals by the respondent companies, the constitutional principles they raise, such as the rule of law, are not incompatible with the discretion conferred on the court by art. 1699(2) of the Civil Code of Québec (S.Q. 1991, c. 64). The power to refuse restitution where it would give an undue benefit to one of the parties is a power of equity and justice. It is an exceptional power that the judge must exercise sparingly and transparently by explaining how restitution would grant an undue advantage. Here, the judge did not err by refusing restitution. First, the respondents made interventions on territory under the cities’ control and therefore should pay the resulting “causal costs”. The right of Canadian municipalities to recover these costs is set out in the standard municipal access agreement developed by the CRTC. Second, the cities based themselves on the report to determine the causal costs; they did not proceed arbitrarily or unfairly.
*Summary by SOQUIJ
Text of the decision:
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