Mainville, Rancourt, Lavallée
Appeal from a judgment of the Superior Court granting an application for judicial review of a judgment of the Montreal municipal court dismissing four claims for tariffs charged further to unwarranted fire alarms. Allowed.
Between July 2014 and June 2015, the firefighters of the respondent city went on site for unwarranted fire alarms in four institutions connected to a university health and social services centre. The city charged tariffs to the appellant, the owner of the immovables in question, pursuant to by-law RCG 08-035, which provides certain measures in regard to unwarranted fire alarms for the purpose of improving fire prevention and public security. The appellant refused to pay these amounts, totalling approximately $7,000, arguing that it had State immunity.
Because of the appellant’s status as mandatary of the State that enjoys Crown immunity, the municipal court found that it was exempt from the payment of the tariffs claimed, which are akin to a municipal tax. The trial judge noted that the characterization of the tariffs charged as a municipal tax had not been the subject of debate before the municipal court and found that the right to be heard had not been respected. He found that the judgment was unreasonable and that the file should be returned to the municipal court for a new trial.
The trial judge should have applied the standard of review of correctness. The right to be heard was infringed by the municipal court, which decided the matter on a ground other than the one submitted to it by the appellant, such that intervention was necessary. The judge should have decided the case on the merits rather than sending the file back to the municipal court.
The appellant’s mandate excludes the power to equip and furnish its immovables used by participants in the health and social services sector. It also does not have the power to maintain the immovables it owns that are occupied by public institutions or private institutions under agreement within the meaning of the Act respecting health services and social services (CQLR, c. S-4.2). The by-law makes the appellant ultimately liable for equipping the immovables in the health and social services sector with fire alarm systems and for maintaining them, contrary to its legislative mandate. The appellant can refuse to assume this additional responsibility imposed on it by the city by invoking its immunity as mandatary of the State under section 42 of the Interpretation Act (CQLR, c. I-16).
There are no grounds for accepting the city’s argument that its by-law is based on the Fire Safety Act (CQLR, c. S-3.4), to which the State is bound. In addition, the city cannot avail itself of the exception to State immunity based on benefits and obligations. Indeed, it is inaccurate to contend that the appellant profits from the city’s fire department without participating in its financing. It contributes to municipal services for the immovables it owns that are used by health and social services in accordance with a formula established by law. The application of the doctrine of state immunity in this case is thus reinforced, because the legislature provided specific compensation mechanisms for municipalities, to mitigate the effects of that doctrine on the financing of services provided by them, including fire protection services.
Text of the decision: http://citoyens.soquij.qc.ca