2017 QCCA 1876, 2017 QCCA 1876

Rossdeutscher c. Ville de Montréal 2017 QCCA 1876 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025948-167 (500-17-081396-148) MINUTES OF THE HEARING DATE: November 24, 2017 CORAM: THE HONOURABLE GENEVIÈVE MARCOTTE , J.A. MARK SCHRAGER , J.A. CLAUDINE ROY , J.A. APPELLANTS COUNSEL RAPHAEL ROSSDEUTSCHER GARY BERTRAND 9309-1965 QUÉBEC INC. 9309-2005 QUÉBEC INC. MTRE LIONEL ROSSDEUTSCHER (Lionel Rossdeutscher & Associés) (Absent) RESPONDENT COUNSEL ville de montréal MTRE ÉRIC COUTURE (Gagnier Guay Biron) On appeal from a judgment rendered on February 10, 2016 by the Honourable Justice Michel Yergeau of the Superior Court, District of Montreal

DESCRIPTION : Municipal – Regulation on salubriousness, maintenance and security of lodgings – Inspections – Power of the inspector - Constitutionality Clerk: David Champigny Courtroom: Antonio-Lamer HEARING 9:30 Continuing the hearing from the 22 nd of November 2017 Counsel’s presence is not required BY THE COURT : Judgment – See page 3

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s) David Champigny Clerk BY THE COURT JUDGMENT [ 1 ] The corporate Appellants are property owners, while the personal Appellants are respectively property manager and a tenant of multi-residential buildings located on Barclay Street in the Côte-des-Neiges/N.D.G. borough of Montreal.

They contested the “action plan” set out by the borough in 2013 to apply the municipal by-laws concerning health, maintenance and public safety issues in multi- residential dwellings. [ 2 ] They sought to obtain a declaratory judgment and a permanent injunction to restrict the inspection powers of municipal employees whose task is to ensure the compliance with the minimal health and safety requirements set out under the By-law concerning the Sanitation, Maintenance and Safety of Dwelling units of the City of Montreal . [1] They argued that the inspections which were carried out by the municipal employees on their premises were ultra vires of

Section 7 of said by-law and of

Section 1 of the By-law concerning inspections . [2] They also claimed that the inspections were abusive and violated the constitutional rights of the Appellants and tenants of the buildings, not parties to the proceedings. [ 3 ] The Superior Court dismissed the Appellants’ Motion for a declaratory judgment and permanent injunction and granted in part the permanent injunction sought by the City of Montreal against them to access the buildings and apartments for the purpose of inspecting the premises and ensuring compliance. [ 4 ] The Appellants argue that the Superior Court judge was biased and predisposed, and that they were denied a fair hearing.

They claim that they were prevented from properly adducing their evidence as a result of the judge’s lack of availability and that they were denied a fair hearing in accordance with the audi alteram partem rule. Moreover, they assert that the judge made inappropriate interventions and comments during trial. [ 5 ] A thorough review of the transcripts of the hearing reveals that the Appellants’ attorney had to be reminded by the judge on several occasions of basic evidentiary rules and of proper behaviour in the courtroom.

Through his improper line of questioning, Mtre Rossdeutscher asked witnesses to provide opinions rather than report on facts and repeatedly argued with the judge.

He also openly testified in lieu of the witnesses, which may not be totally unrelated to the fact that he participated or witnessed some of the inspection visits, being the brother of Appellant Raphaël Rossdeutscher as well as a member of the family who controls the corporate Appellants. [ 6 ] The Appellants had the burden of establishing partiality on the part of the trial judge by showing a reasonable fear of bias based on serious grounds, in accordance with the principles set out by the Supreme Court of Canada in Committee for Justice and Liberty v.

National Energy Board : [3] The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that Mr.

Crowe, whether consciously or unconsciously, would not decide fairly.” [ 7 ] These principles have been consistently applied and were also reaffirmed by the Supreme Court in Bande indienne Wewaykum v. Canada . [4] [ 8 ] The Appellants have not succeeded in demonstrating any reasonable apprehension of bias on the part of the judge. The

accusations found in their memorandum range from the judge “not hav[ing] the time to acquaint himself with the file”, to having “refused to reschedule for additional time notwithstanding Appellants’ attorneys request” and having forced them “to eliminate witnesses which were originally scheduled to appear”. They add that the judge was “constantly interrupting [the] testimony [of their witnesses]”, “making negative comments about their testimony while [they] testified in addition to arguing with Appellants witnesses and Attorney”.

Appellants continue and refer to the judge’s “pre-emptively declaring that it would be hard […] to convince […] that Respondents are abusing their rights, power and discretion”. [ 9 ] These contentions are not reflected in the transcripts of the hearing or elsewhere in the Court record. They are grossly inaccurate. The Appellants called the witnesses that they wished to have heard and were given ample time to present their case. The judgment indicates the fair and objective treatment which they received from the judge.

They have failed to show any legal foundation for an argument of judicial partiality. [ 10 ] The additional grounds of appeal submitted are also completely unfounded. [ 11 ] The judge did not refuse to consider the evidence of abuse of power on the part of municipal inspectors. He concluded that there had been no proof that the Appellants’ buildings had been targeted or selected for inspection in bad faith or with malice.

His analysis of the testimony of chief inspector Henri-Germain and the assessment of his credibility and integrity are well detailed, as are also those concerning Appellant Raphaël Rossdeutscher. They command deference on the part of this Court, absent a demonstration of a palpable or overriding error on the part of the judge.

The same holds true of the judge’s appreciation of the other evidence, including the testimony of tenant Gary Bertrand and of city inspector Ferhaoui. [ 12 ] The judge’s analysis of the applicable by-laws and the legality of the action plan to apply and enforce those by-laws is both extensive and flawless and it is fully endorsed by this Court.

The same can be said of his analysis of the constitutional issues raised by the Appellants. [ 13 ] Their contention that the trial judge failed to address their argument based on Sections 8 and 24.1 of the Canadian Charter of Rights and Freedoms [5] is completely unfounded, as the judgment deals thoroughly with that issue over 38 paragraphs (paragraphs 213 to 255). [ 14 ] Concerning the application of

Section 7 of both the Canadian [6] and Québec [7] Charters, the trial judge concluded that there had been no evidence of any unauthorized intrusion in the tenants’ apartments. He was also correct in determining that the Appellant owners had no personal interest in the protection of their tenants’ right to privacy inside their apartments. Appellants fail to show any reviewable error in this respect. [ 15 ] Equally unfounded is the argument raised with respect to the illegality of

Section 57 of the By-law concerning fees , [8] which provides for the payment of a fee for additional inspections that may be required in the event of a failure to comply with a notice of non- compliance and to carry out necessary work. For the reasons set out by the trial judge, the Appellants failed to demonstrate that such fee is ultra vires of the City’s powers’ under

Section 145 of the Charter of Ville de Montréal . [9] Moreover and contrary to Appellants’ assertion, there is no difference between the English and French versions of

Section 57. [ 16 ] Lastly, the Appellants have not demonstrated any error in the judge’s decision to grant the permanent injunction and enjoin the Appellants to give access to the buildings and apartments for inspection purposes in order to verify compliance with the By-law concerning the Sanitation, Maintenance and Safety of Dwelling units of the City of Montreal . FOR THESE REASONS, THE COURT: [ 17 ] DISMISSES the appeal with legal costs. GENEVIÈVE MARCOTTE, J.A. MARK SCHRAGER, J.A. CLAUDINE ROY, J.A.