Court of Appeal of Quebec

Ville de Saint-Constant c. Succession de Pépin

500-09-027578-186

Bich, Marcotte, Hogue

Application for leave to appeal nunc pro tunc. Appeal from a judgment of the Superior Court condemning the appellant municipality to pay the amount of $127,616. Dismissed.

Further to a complaint filed by a rival’s political organizer, the respondent Pépin, now deceased, was charged with corruption, abuse of trust, and fraud committed in the performance of his duties as mayor of the appellant municipality. All these charges were withdrawn two years later. The respondent claimed reimbursement from the appellant of the costs (professional fees and disbursements) he had incurred to assume his defence and those he had incurred to assert his rights under section 604.6 of the Cities and Towns Act (CQLR, c. C-19). The appellant appeals from the judgment granting that application.

Because the amount in dispute in this appeal is significantly higher than $60,000, the appellant could appeal as of right from the judgment at first instance.

Regarding the appeal on the merits, by providing on the one hand that the municipality must pay any reasonable costs incurred to defend an elected official being prosecuted under one of the proceedings listed in the first paragraph of section 604.6 of the Cities and Towns Act, while stating on the other that the town may obtain reimbursement or cease payment in the cases and under the conditions set out in sections 604.7 and 604.8, the legislature has ensured that the elected official in question is protected without imposing the weight of unjustified expenditures on the shoulders of taxpayers.

Berniquez St-Jean c. Boisbriand (Ville de), (C.A., 2013-12-19), 2013 QCCA 2197, SOQUIJ AZ-51029088, 2014EXP-117, J.E. 2014-65, and Bellefeuille c. Ville de L'Assomption (C.A., 2017-12-07), 2017 QCCA 1946, SOQUIJ AZ-51448992, 2017EXP-3498, should not be read as excluding or nearly excluding criminal prosecution from the situations covered by sections 604.4 et seq of the Cities and Towns Act. A textual, contextual, and purposive analysis of sections 604.6 to 604.9 of the Act reveals that an elected municipal official who is a defendant in a criminal prosecution the object of which has a prima facie connection to his position as an elected official and his duties – that is, it is related to those duties or arises from situations in which those duties place the elected official – is entitled to the municipality’s assistance, which it is bound to provide, even in cases where the alleged act, if proved, would constitute an abuse or a diversion committed in the performance of his duties, the whole subject to the right to obtain reimbursement or to cease payment set out in section 604.7, paragraph 1, subparagraphs 1 or 3, on the conditions provided in sections 604.7, paragraphs 2 and 3, and 604.8 of the Act.

If the criminal proceedings have concluded by the time the elected official presents his or her request to the municipality, the burden on the official remains the same (simple prima facie proof of the conditions in section 604.6). The municipality may nonetheless refuse, based on sections 604.7 and 604.8 of the Act, if it is able to establish, on a balance of probabilities, the conditions for the application of those sections (and, if applicable, the fact that the elected official’s alleged act was a fault separable from the performance of his or her duties).

In this case, the evidence reveals that Pépin amply discharged his burden under section 604.6 of the Act. Although his burden required nothing more than prima facie proof, he made his case out on a balance of probabilities, even showing that the criminal charges against him concerned acts he committed in the ordinary performance of his duties as mayor and in the interests of the municipality, rather than in his own alone. Pépin also established (which was not required) that the charges against him could be characterized as frivolous. The appellant, for its part, failed to undermine this evidence or to establish any circumstances that might have justified its refusal to pay under section 604.7 of the Act, in particular that Pépin’s act was separable from the performance of his duties (section 604.7, paragraph 1).

Finally, when a town relies on section 604.7 of the Act to seek reimbursement of amounts it has paid an elected official, officer, or employee under section 604.6, the interested party objecting to such an application may claim payment from the municipality of the amount it must incur to contest. The judge must then rule on the applicability of section 604.7 to this claim (section 604.9, paragraph 2), which also refers to section 604.8 of the Act. Although not expressly set out in the Act, this principle also applies where the elected official’s claim based on section 604.6, even when filed after the end of the proceedings against the official, is refused by the municipality, making it necessary to bring an action against it. In this case, Pépin’s application in this respect met all the requirements, and the judge at first instance was therefore right to condemn the appellant to pay the professional fees and disbursements incurred.

Legislation interpreted: sections 604.6 et seq. of the Cities and Towns Act

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

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