Vauclair, Hamilton, Kalichman

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

The appellants Tassoni and De Cotis are municipal councillors in the respondent city. In 2020, they learned that they were under inquiry by the Commission municipale du Québec (CMQ) for taking part in the adoption of resolutions while they were allegedly in a conflict of interest. Tassoni hired lawyers to provide an advisory opinion and to represent her and, when she refused to settle the file by pleading guilty, the investigator closed the file. When the city refused to pay her lawyer’s fees, Tassoni brought this application for mandamus, adding De Cotis as plaintiff.

The trial judge dismissed the mandamus application, finding that the obligation to reimburse under section 604.6 of the Cities and Towns Act (CQLR, c. C-19) begins only once the adjudicative process is under way, and therefore once a summons has been filed at the secretariat of the CMQ, whereas the obligation to reimburse under section 35 of the Municipal Ethics and Good Conduct Act (CQLR, c. E-15.1.0.01) applies when an advisory opinion is sought as a preventive measure, not to determine whether an ethical breach was committed.

Section 604.6 of the Cities and Towns Act, which provides that a municipality shall assume the defence or the representation of a person in a proceeding before a court, does not apply in this case. The provision does not refer to an inquiry by the CMQ, even though a municipal representative could face an ethics complaint before that body during their term and is entitled to be assisted by a lawyer during the CMQ’s administrative inquiry. If the legislature had intended that it apply in such a case, it could easily have added this inquiry to the list in section 604.6 of the Cities and Towns Act. Therefore, its absence is significant. Moreover, the legislature uses broader language elsewhere than it does in this provision. Indeed, it has put in place a particularly generous reimbursement regime for municipal officers, expressly covering the inquiries and preliminary inquiries referred to in section 85.1 of the Act respecting the National Assembly (CQLR, c. A-23.1). Since the definitions of the terms “court” in section 604.6 of the Cities and Towns Act and “tribunal” in section 56 of the Charter of human rights and freedoms (CQLR, c. C-12) are the same, and the Direction du contentieux et des enquêtes (DCE) of the CMQ does not appear to be included in the other Charter provisions referring to a “tribunal”, it should not be found that the DCE is a “court” within the meaning of the Cities and Towns Act.

However, the judge should not have limited the application of section 35 of the Municipal Ethics and Good Conduct Act to purely preventive consultations, when the only requirement in this provision is that the advisory opinion concern “any matter relating to the code of ethics and conduct”. What is more, the appellants’ efforts were preventive because their terms as elected officers were not over. However, the appellants may obtain reimbursement only of their lawyer’s fees for preparing the legal opinion. Because reimbursement of the fees relating to the inquiry and to the proceedings to obtain reimbursement of the fees, including this appeal, is not provided for in section 35 of the Municipal Ethics and Good Conduct Act, it must be governed by the rules of ordinary law. These fees are reimbursable only as damages for abuse of the right to litigate, which is neither alleged nor proved in this case.

Legislation interpreted: section 604.6 of the Cities and Towns Act and section 35 of the Municipal Ethics and Good Conduct Act.

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