Vauclair, Hamilton, Kalichman

Appeal from a judgment of the Superior Court dismissing an application for judicial review. Allowed.

The appellant has been a municipal councillor in the respondent city and president of the council of commissioners of the Sir Wilfrid Laurier English school board for several years. In 2021, an amendment to section 300 of the Act respecting elections and referendums in municipalities (CQLR c. E-2.2) led to questioning regarding whether he was eligible to hold these two offices. The appellant hired an “ethics advisor” lawyer to provide a legal opinion, but the city refused to pay the lawyer’s fees, thus leading to the application for mandamus.

The trial judge concluded that the opinion solicited by the appellant did not fall within the scope of section 35 of the Municipal Ethics and Good Conduct Act (CQLR c. E-15.1.0.1) because: (1) it did not seek to preventively clarify a potential issue of conflict, since the issue related to the plurality of offices had already crystalized; and (2) it did not concern a breach of the rules in by-law L-12916, Code d’éthique de déontologie des élus de la Ville de Laval et leurs employés politiques, but rather a legal disqualification set out under section 300 of the Act respecting elections and referendums in municipalities.

Even supposing that the judge was correct to assume that the opinion dealt with the plurality of the appellant’s offices, a situation that [translation] “had already crystalized” and that arose under section 300 of the Act respecting elections and referendums in municipalities, this was not sufficient to refuse to reimburse the fees. Section 35 of the Municipal Ethics and Good Conduct Act must be interpreted to encourage elected municipal officers alleged to have committed a violation to obtain the clarification needed to correct a potentially illegal situation or adopt a better practice in the future. The appellant explained that the plurality of offices was likely to lead to [translation] “ethics complaints” and that the legal opinion was prospective in that it dealt with a potential conflict of interest issue. Such a potential conflict of interest is clearly covered by the code of ethics. The appellant was therefore entitled to the reimbursement of the lawyer’s fees for the preparation of the legal opinion pursuant to section 35 of the Municipal Ethics and Good Conduct Act.

As the reimbursement related to the application for mandamus and the appeal is not provided for in section 35 of the Municipal Ethics and Good Conduct Act, it must instead follow the rules of ordinary law. These professional fees are reimbursable only in the form of damages for abuse of the right to litigate, which is neither alleged nor proved in this case.

Legislation interpreted: section 35 of the Municipal Ethics and Good Conduct Act

Text of the decision: http://citoyens.soquij.qc.ca