2017 QCCA 1251, 2017 QCCA 1251

Unofficial English Translation of the Judgment of the Court Fraternité des policiers de Châteauguay inc. c. Ville de Mercier 2017 QCCA 1251 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-026196-162 (760-17-004172-154) DATE: August 21, 2017 CORAM: THE HONOURABLE JACQUES DUFRESNE, J.A. NICHOLAS KASIRER, J.A. SUZANNE OUELLET, J.A. ( AD HOC ) FRATERNITÉ DES POLICIERS DE CHÂTEAUGUAY INC. FÉDÉRATION DES POLICIERS ET POLICIÈRES MUNICIPAUX DU QUÉBEC ROGER BOLDUC NICOLAS VEILLEUX APPELLANTS – APPLICANTS – Plaintiffs v.

VILLE DE MERCIER ATTORNEY GENERAL OF QUEBEC RESPONDENTS - Defendants And LISE MICHAUD in her capacity as mayor of Ville de Mercier VILLE DE CHÂTEAUGUAY IMPLEADED PARTIES – Impleaded parties JUDGMENT [ 1 ] The Fraternité des policiers de Châteauguay inc., the Fédération des policiers et policières municipaux du Québec, Roger Bolduc, and Nicolas Veilleux appeal from a judgment of the Superior Court, District of Beauharnois, rendered on June 7, 2016 (the Honourable Gary D.D.

Morrison), dismissing their amended motion to institute proceedings for a declaratory judgment of nullity, a safeguard order, and an interlocutory injunction, with legal costs. They also seek leave to appeal de bene esse the judgment after the expiry of the time limit.

The respondent Ville de Mercier and the impleaded party Lise Michaud have filed an application to dismiss the appeal. [ 2 ] For the reasons of Kasirer, J.A., with which Dufresne, J.A. and Ouellet, J.A. ( ad hoc ) concur, THE COURT : [ 3 ] DISMISSES the application for leave to appeal de bene esse after the expiry of the time limit, with legal costs in favour of the respondents Ville de Mercier and the Attorney General of Quebec and the impleaded party Lise Michaud: [ 4 ] GRANTS the application to dismiss the appeal, with legal costs in favour of the respondent Ville de Mercier and the impleaded party Lise Michaud, but without costs for the Attorney General of Quebec; [ 5 ] DISMISSES the appeal, with legal costs in favour of the respondent Ville de Mercier and the impleaded party Lise Michaud, but without costs for the Attorney General of Quebec; [ 6 ] THE WHOLE, without legal costs for the Ville de Châteauguay.

JACQUES DUFRESNE, J.A. NICHOLAS KASIRER, J.A. SUZANNE OUELLET, J.A. ( AD HOC )

Mtre Danny Venditti Roy Bélanger Dupras Avocats For the appellants Mtre René Piotte Mtre Pierre-Alexandre Boucher Bélanger, Sauvé For the respondent Ville de Mercier and the impleaded party Lise Michaud Mtre Léandro Isai Steinmander Bernard Roy (Justice Québec) For the respondent Attorney General of Quebec Mtre Jean-Gabriel Mercier-Rancourt (absent) Rancourt Legault Joncas For the impleaded party Ville de Châteauguay Date of hearing: March 15, 2017 REASONS OF KASIRER J.A. [ 7 ] Under the aegis of the new Code of Civil Procedure , is a judicial review judgment dismissing an application to quash a municipal resolution appealable as of right or with leave? [ 8 ] In this case, a union seeks a declaration of nullity regarding two municipal council resolutions adopted with a view to creating a police department for the municipality and the ministerial decision authorizing its creation.

Their action is akin to what used to be called a “direct action in nullity”. The Superior Court judge summarily dismissed the action because he considered that it had not been brought within a reasonable time. [ 9 ] Under the former Code of Civil Procedure , this judgment would have been appealable as of right.

What is the situation under art. 30, para. 2 (5) of the new Code , which lists the judicial review judgments that require leave to appeal, but does not expressly mention judgments dealing with applications to quash an administrative decision? [ 10 ] For the following reasons, I am of the opinion that leave to appeal was required under the new law and that, as a result, the appeal was improperly initiated. The basis of the right to appeal in art. 30 C.C.P. varies depending on the “subject matter/objet” of the application for judicial review decided by the Superior Court.

When the subject matter is an administrative act, as are the municipal resolutions in this case, as opposed to a normative instrument, art. 30, para. 2

(5) C.C.P. states, using the same description of the subject matter in art. 529 , para. 1

(2) C.C.P., that any such review judgment is appealable only with leave. [ 11 ] This solution is based on a legislative policy to unify and simplify judicial reviews according to the subject matter of the proceeding rather than the procedural vehicle used to apply to the Superior Court. It is also based on what I perceive as a firm intention, enshrined particularly in art. 529 , para. 1 (1) and 529, para. 1

(2) C.C.P. to treat judicial reviews of normative instruments differently from those of administrative acts . The former challenges the validity of actual rules of law, and the subject matter of the judicial review justifies an appeal as of right under art. 30 , para. 1 C.C.P.: normative instruments have a general scope and are intended to [ translation ] “establish a new or revised legal order” [1] by establishing, for example, rules of conduct in advance. In a judicial review of an administrative decision, like the one challenged in this case, the subject matter is

an act with a more limited and [ translation ] “specific” [2] scope that, in general, applies, rather than creates, legislation. In such circumstances, the legislature requires leave to appeal in art. 30, para. 2

(5) C.C.P., thereby restricting appeals, in accordance with the consideration of efficient access to justice on appeal. [ 12 ] Moreover, I would dismiss the application for leave to appeal after the expiry of the time limit because I am of the view that the appeal sought presents no issue that should be submitted to the Court and has no reasonable chance of success. *** I Background [ 13 ] Following a disagreement with the Ville de Châteauguay, the Ville de Mercier decided to create its own police force instead of using the neighbouring municipality’s police force.

The certified union representing the police officers of the Châteauguay police department is opposed, hence the dispute. [ 14 ] The facts – taken for proven at this stage of the proceedings – are summarized as follows. [ 15 ] In 2003, the Ville de Mercier and the Ville de Châteauguay entered into a 10-year agreement under which the Châteauguay police department would also serve the territory of Mercier. In 2012, Châteauguay sent Mercier a notice of non-renewal and proposed that a new agreement be negotiated.

The agreement expired in 2013 during negotiations. [ 16 ] Given the impasse, Mercier decided to create its own police force. To do so, it had to follow the process set out under the Police Act , [3] which states, in particular, that municipalities must have the approval of the Minister of Public Security to create a new police

force. [ 17 ] On February 23 and 26, 2015, Mercier held two public consultations to inform residents about the project. On March 10, 2015, the Mercier municipal council adopted Resolution 068 entitled [ translation ] “Request for authorization to create an independent police department”. In the resolution’s

preamble, the council states that Mercier does not wish to renew the police service agreement, that it has conducted a police force feasibility study, and that it held public consultations with the population on creating a police force.

The resolution concludes: [ translation ] “Be it resolved that [...] the Ville de Mercier officially ask the Minister of Public Security for authorization to create an independent police department to ensure the safety of its residents, the whole [...] in accordance with s. 71(1) of the Police Act ”. [ 18 ] On March 12, 2015, the Fraternité des policiers de Châteauguay and the Fédération des policiers et policières municipaux du Québec sent Mercier a formal notice to cancel Resolution 068 based on irregularities during the public consultation process.

They were of the view that residents had not really been consulted and therefore asked the Ville de Mercier to restart the process, failing which they would pursue [ translation ] “every appropriate legal recourse”. [ 19 ] From March 10 to June 3, 2015, the Fraternité and the Fédération gave what they described as [ translation ] “dozens of interviews” to the media in which they said that they were opposed to the creation of a new police force.

They published [ translation ] “many ads in the local newspaper” to this effect, distributed “tracts”, and participated in the Mercier municipal council meetings, again in order to express their opposition to the project. [ 20 ] On August 12, 2015, the municipal council adopted Resolution 218, entitled [ translation ] “Non-renewal of the police service agreement with the Ville de Châteauguay”, and resolved to inform the Minister and Châteauguay that Mercier was not going to enter into a new intermunicipal police service agreement with Châteauguay. [ 21 ] On November 10, 2015, the Minister issued a release stating that he would authorize Mercier to create its own police force, in accordance with Resolution 068. [ 22 ] On December 22, 2015, the Fraternité des policiers de Châteauguay, the Fédération des policiers et policières municipaux du Québec, Roger Bolduc (a retired police officer with the former Mercier police force), and Nicolas Veilleux (a police officer with the Ville de Châteauguay police department and resident of Mercier) instituted proceedings for a [ translation ] “declaratory judgment of nullity”, a safeguard order, and an interlocutory injunction against Mercier and the Minister. [ 23 ] The appellants argue that the consultation process that preceded the adoption of Resolutions 068 and 218 was vitiated by irregularities and therefore did not comply with the requirements of ss. 73 and 73.1 of the Police Act .

In the circumstances, they submit that Resolutions 068 and 218 should be declared [ translation ] “null and void”.

The appellants further submit that the Minister’s authorization, announced in the release, is [ translation ] “void ab initio and of no effect” because a public consultation is an essential condition to the exercise of the power, conferred on the Minister by the Act , to authorize the creation of a police force. [ 24 ] The conclusions in their application for judicial review state: [ translation ] For these reasons, may it please the Court to: DECLARE that the public consultation process conducted by the defendant from January 22 to March 13, 2015, does not meet the requirements of s. 73.1 of the Police Act ; DECLARE that the defendant breached its obligation to inform with respect to the public consultation process to create an independent police force; DECLARE resolution P-1 (2015-03-068) of the defendant city of March 10, 2015, void and of no effect for all legal purposes; DECLARE resolution P-2 (2015-08-218) of the defendant city of August 12, 2015, void and of no effect for all legal purposes; DECLARE authorization P-14 of the defendant Minister void ab initio and of no effect for all legal purposes [...]. [ 25 ] On February 2, 2016, Mercier raised an exception to dismiss the action on the ground that the application was late because not filed within a reasonable time for bringing such an action under the Code of Civil Procedure .

Mercier further argued that the Police Act does not require a public consultation before a new police force is created. [ 26 ] Shortly thereafter, the appellants amended their motion to institute proceedings to state that at all relevant times, they [ translation ] “firmly believed that the Minister would categorically refuse resolution [068]” and that they [ translation ] “were diligent in filing the application”.

II The judgment under appeal [ 27 ] The judge granted Mercier’s exception to dismiss and dismissed the application for a declaratory judgment of nullity, a safeguard order, and an interlocutory injunction, with legal costs. [4] The judge considered that the appellants’ application for judicial review had not been served within a reasonable time. [ 28 ] He began his analysis by noting that under art. 529 , para. 3 C.C.P. , an application for judicial review seeking a declaration of nullity must be served within a reasonable time of the date after the act or the fact on which it is based.

The judge did not consider that the case law has established a [ translation ] “generalized automatic” 30-day period when applying to quash a municipal resolution. He

was of the view that the reasonableness of the time is assessed on a case-by-case basis and that the determination falls within the presiding court’s [ translation ] “broad” discretion. [ 29 ] The judge took particular note of the nine-month delay between the time Resolution 068 was adopted and the time the appellants’ application for judicial review seeking its nullity was filed.

The judge wrote that in such circumstances, it is particularly appropriate to consider, in order to measure the reasonableness of the time, whether the impugned resolution has had a [ translation ] “concrete or actual effect” since its adoption. [ 30 ] After weighing the factors relevant to determining the reasonableness of the time, the judge found that the nine-month delay was unreasonable. [ 31 ] He found it difficult to understand the delay between the time the formal notice was sent by the appellants and the date on which proceedings were filed.

Mercier had not changed its position during this period and continued to move forward with its plan to create a new police force. The judge wrote that the appellants’ supposedly sincere belief that the Minister was not going to authorize the project is contradicted by their subsequent conduct.

This included media interviews given by their representatives, ads published in the local newspaper, and tracts distributed to Mercier residents, acts admitted in their amended motion to institute proceedings. [ 32 ] The judge further noted that the legality of the resolutions [ translation ] “did not depend on the Minister’s forthcoming decision” and that the appellants’ negligence caused additional delays and costs for Mercier.

In the end, the judge wrote, Mercier would suffer an injustice were the Court to disregard the time in this case. [ 33 ] In light of his finding on timeliness, the judge decided that there was no need to rule on whether Mercier had to hold a public consultation in the circumstances. He granted the exception to dismiss and dismissed the appellants’ motion to institute proceedings . *** [ 34 ] The appellants filed a notice of appeal against the judgment followed by an amended notice of appeal, both within the time limits.

They are of the view that the judgment under appeal, as a judgment dismissing an action in nullity, is appealable as of right under art. 30 , para. 1 C.C.P. [ 35 ] As a matter of caution and [ translation ] “in the alternative”, the appellants presented an application for leave to appeal after the expiry of the time limit under art. 363 C.C.P. After reading the judgments in Tcheng c. Coopérative d’habitation Chung Hua [5] and Juste Investir Inc./Just Invest inc. c. Québec (Procureure générale) , [6] the appellants noted the line of cases that requires, under art. 30 , para. 2

(5) C.C.P., leave to appeal a judicial review judgment dismissing an application to quash an administrative decision made by a person or body subject to that provision. [ 36 ] They state that they disagree with this

interpretation of the new Code of Civil Procedure but submit, should the Court agree with it, that they [ translation ] “cannot be punished for the legal imbroglio arising from the implementation of the new rules of civil procedure”. In this context, their counsel’s error constitutes an impossibility to act that justifies an application for leave after the expiry of the time limit.

The appellants contend that not more than six months have elapsed since the judgment, that they were diligent in presenting an application for leave to appeal, and that they have serious grounds in support of their appeal. [ 37 ] On July 15, 2016, Mercier filed an application to dismiss the appeal, alleging that the appeal was not only improperly initiated, but also had no reasonable chance of success and should therefore be summarily dismissed. [ 38 ] The applications for leave to appeal after the expiry of the time limit and to dismiss the appeal were referred to the Court. [7] III Requirement for leave to appeal the judgment under appeal [ 39 ] The applications referred to the panel raise two preliminary issues.

The first is whether the appellants required leave to appeal the judgment under appeal in accordance with art. 30 , para. 2

(5) C.C.P. and, in the affirmative, whether they should be granted leave to appeal after the expiry of the time limit. [8] Should the Court decide that leave was required, the appellants must not only explain the delay, but also show that the judgment raises an issue that “should be submitted to [the] Court/doit être soumise à la cour” within the meaning of art. 30, para. 3 C.C.P. [ 40 ] According to well-settled case law, however, leave to appeal after the expiry of the time limit will not be granted if the proposed appeal has no reasonable chance of success. [9] This relates to the issue raised by Mercier’s application to dismiss the appeal that was referred to this panel. [ 41 ] Can the appellants appeal the judgment as of right or do they require leave to appeal in accordance with art. 30 , para. 2

(5) C.C.P. ? [ 42 ] It is useful to reproduce art. 30 , para. 1, para. 2(5) and para. 3 C.C.P. governing the right to appeal: 30. Judgments of the Superior Court and the Court of Québec that terminate a proceeding, and judgments or orders that pertain to personal integrity, status or capacity, the special rights of the State or contempt of court, may be appealed as of right. 30. Peuvent faire l’objet d’un appel de plein droit les jugements de la Cour supérieure et de la Cour du Québec qui mettent fin à une instance, de même que les jugements et ordonnances qui portent sur l’intégrité, l’état ou la capacité de la personne, sur les droits particuliers de l’État ou sur un outrage au tribunal.

The following, however, may be appealed only with leave: Toutefois, ne peuvent faire l’objet d’un appel que sur permission : […] […] (5) judicial review judgments of the Superior Court relating to the evocation of a case pending before a court or to a decision made by a person or body or a judgment rendered by a court that is subject to judicial review by the Superior Court, or relating to a remedy commanding the performance of

an act; 5° les jugements de la Cour supérieure rendus sur un pourvoi en contrôle judiciaire portant sur l’évocation d’une affaire pendante devant une juridiction ou la révision d’une décision prise par une personne ou un organisme ou d’un jugement rendu par une juridiction assujetti à ce pouvoir de contrôle ou sur un pourvoi enjoignant à une personne d’accomplir un acte; […] […] Leave to appeal is granted by a judge of the Court of Appeal if that judge considers that the matter at issue is one that should be submitted to that Court, for example because it involves a question of principle, a new issue or an issue of law that has given rise to conflicting judicial decisions.

La permission d’appeler est accordée par un juge de la Cour d’appel lorsque celui- ci considère que la question en jeu en est une qui doit être soumise à la cour, notamment parce qu’il s’agit d’une question de principe, d’une question nouvelle ou d’une question de droit faisant l’objet d’une jurisprudence contradictoire. [ 43 ] It is also useful to reproduce art. 529 C.C.P. , the first provision among the general rules of the

chapter on “Judicial Review/Le pourvoi en contrôle judiciaire” of Book VI of the Code: 529. In a judicial review, the Superior Court may, depending on the subject matter, 529. La Cour supérieure saisie d’un pourvoi en contrôle judiciaire peut, selon l’objet du pourvoi, prononcer l’une ou l’autre des conclusions suivantes : (1) declare inapplicable, invalid or inoperative a provision of

an Act of the Parliament of Québec or the Parliament of Canada, a regulation made under such a law, an order in council, a minister’s order or any other rule of law; 1° déclarer inapplicable, invalide ou inopérante une disposition d’une loi du Québec ou du Canada, un règlement pris sous leur autorité, un décret gouvernemental ou un arrêté ministériel ou toute autre règle de droit; (2) evoke, on a party’s application, a case pending before a court, or review or quash a judgment rendered by a court or a decision made by a person or body under the authority of the Parliament of Québec, if the court, body or person acted without jurisdiction or in excess of jurisdiction, or if the procedure followed was affected by some serious irregularity; 2° évoquer, à la demande d’une partie, une affaire pendante devant une juridiction ou réviser ou annuler le jugement rendu par une telle juridiction ou une décision prise par un organisme ou une personne qui relève de la compétence du Parlement du Québec si la juridiction, l’organisme ou la personne a agi sans compétence ou l’a excédée ou si la procédure suivie est entachée de quelque irrégularité grave; (3) direct a person holding an office within a public body, a legal person, a partnership or an association or another group not endowed with juridical personality to perform

an act which they are by law required to perform, provided the act is not of a purely private nature; or 3° enjoindre à une personne qui occupe une fonction au sein d’un organisme public, d’une personne morale, d’une société ou d’une association ou d’un autre groupement sans personnalité juridique d’accomplir un acte auquel la loi l’oblige s’il n’est pas de nature purement privée; (4) dismiss a person who, without right, is occupying or exercising a public office or an office within a public body, a legal person, a partnership or an association or another group not endowed with juridical personality. 4° destituer de sa fonction une personne qui, sans droit, occupe ou exerce une fonction publique ou une fonction au sein d’un organisme public, d’une personne morale, d’une société ou d’une association ou d’un autre groupement sans personnalité juridique.

Except in the case of lack or excess of jurisdiction, judicial review is available only if the judgment or the decision cannot be appealed or contested. Ce pourvoi n’est ouvert que si le jugement ou la décision qui en fait l’objet n’est pas susceptible d’appel ou de contestation, sauf dans le cas où il y a défaut ou excès de compétence. An application for judicial review must be served within a reasonable time after the act or the fact on which it is based.

Le pourvoi doit être signifié dans un délai raisonnable à partir de l’acte ou du fait qui lui donne ouverture. [ 44 ] The appellants submit that a judicial review judgment dismissing an application to quash an administrative decision is appealable

[ 44 ] The appellants submit that a judicial review judgment dismissing an application to quash an administrative decision is appealable as of right under the new Code of Civil Procedure , as was the case for a “direct action in nullity” under the former Code . [ 45 ] More specifically, they argue that art. 30 , para. 2

(5) C.C.P. , requiring leave to appeal certain judicial review judgments, does not apply to this case. They contend that this wording is new law and provides that judgments on the review of an administrative decision made by a person subject to judicial review require leave to appeal, but that it is silent on judgments deciding applications to quash such a decision. They submit that, in this sense, art. 30, para. 2 (5) contrasts with art. 529 , para. 1

(2) C.C.P., where the legislature refers to judicial reviews to “review or quash/réviser ou annuler” an administrative decision made, notably, by a municipality. [ 46 ] The appellants then argue that the legislature’s silence in art. 30 , para. 2

(5) C.C.P. concerning applications for judicial review which contain conclusions to quash confirms that the general rule set out in art. 30, para. 1 C.C.P. applies to this case.

They claim that judgments dismissing proceedings to quash, like the one rendered by the judge who granted the application to dismiss in this case, are judgments “that terminate a proceeding/qui mettent fin à l’instance” and as such, are appealable as of right. [ 47 ] The appellants further claim that the legislative will to change the basis of the right to appeal on this point is not clearly stated and, in the circumstances, it is best to assume that the legislature did not intend to change the rule that a judgment on a direct action in nullity was appealable as of right.

If the legislature had wanted all judicial reviews to be subject to leave to appeal, why did it draft art. 30, para. 2 (5) as an obviously incomplete list? [ 48 ] Let us consider these arguments. Does the fact that the appellants seek to quash, and not only review, the Mercier municipal council resolutions and the Minister’s decision announced in the release, mean that the judgment under appeal is not one of those listed in art. 30 , para. 2

(5) C.C.P. ? [ 49 ] The appellants are not wrong to state that the word “quash/annuler” used in art. 529, para. 1 (2) does not appear in art. 30 , para. 2

(5) C.C.P. listing judicial review judgments that may be appealed only with leave. They refer the Court to authors who, based on a preliminary reading of art. 30, do not exclude the

interpretation that leave is not required because this word does not appear, doubtless based on the venerable and just principle that the Court’s jurisdiction is established by law. [10] [ 50 ] In my opinion, the terminological difference between the expression “r éviser ou annuler ” in the wording of art. 529, para. 1 (2) and the word “révision” in art. 30, para. 2 (5) is not sufficient to establish a legislative intention to maintain the earlier law that judgments on actions to quash administrative decisions may be appealed as of right. The appellants’ textual argument is flawed in that they seek to identify the legislature’s intention, in art. 30 , para. 2

(5) C.C.P. , without considering the English version of the provision, contrary to the most basic rules of

interpretation of bilingual legislative texts, rules that apply to the Code of Civil Procedure . The English version of art. 30 opens the door to another

interpretation of the right to appeal. [ 51 ] Contrary to the French version, the English version states that judicial review judgments of the Superior Court “relating to […] a decision made by a person or body or a judgment rendered by a court that is subject to judicial review by the Superior Court” may be appealed only with leave. This wording mentions neither review nor quash: it appears to more broadly include any judicial review judgment on a decision subject to the Superior Court’s superintending power. The apparent restriction to “révision” alone, observed by the appellants in the French version of art. 30 , para. 2

(5) C.C.P. , does not appear in the English version of the same provision. This could imply that the underlying legislative intention was to refrain from distinguishing between the powers to review and to quash for the purpose of the appeal process. [ 52 ] It is useful here to recall the principle enshrined in s. 7(3) of the Charter of the French Language , [11] explained by Charron, J. in Montréal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse) , [12] that in Quebec, the English and French versions of statutes are equally authoritative.

Charron, J. explained the method for interpreting bilingual legislative provisions: [53] [ ...] see, e.g., R. v. Daoust, Schreiber v. Canada. These cases suggest a two-step approach. The first step is to look for a shared meaning between the two provisions, which often involves adopting the more narrow version. [...] However, if this approach would lead to a meaning that is contrary to the legislature’s intention, other principles of

interpretation should apply. The second step therefore involves comparing the shared meaning to Parliament’s intent to determine whether it is consistent with that intent. [References omitted.] [ 53 ] At first glance, taking into account the particularities of French [13] and English [14] legislative drafting, here there does not appear to be any shared meaning between the two versions of art. 30 , para. 2

(5) C.C.P. I share the

interpretation of Bich, J.A., explained in Juste Investir inc. , where she remarks that the English version of art. 30, para. 2 (5) does not include the restriction to only review decisions stricto sensu that some would read in the French version. [15] In the absence of any shared meaning, the Court must seek the legislature’s intention according to the ordinary rules of

interpretation to determine which version [ translation ] “best conveys the intention”. [16] [ 54 ] I note that my colleague is of the view that the English version better reflects the legislature’s intention to simplify judicial reviews. In Tcheng , she even wonders whether the omission of the word “annulation” in the French version is not merely an [ translation ] “oversight or inadvertence, which is not inconceivable in a reform of this magnitude”. [17] [ 55 ] I would add that the Attorney General of Quebec also submits that the English version more accurately expresses the legislative intent.

This fact is noteworthy insofar as, according to the legislative drafting standards used, the English version of a statute is, in effect, much more often characterized as a “translation” of the French. [18] Here, the Attorney General has no qualms about supporting not only the equal authority of the English versions, presumably in accordance with her

interpretation of s. 133 of the Constitution Act, 1867 , but also that the “translated” – sic! – version better expresses, in this specific instance, the legislative intent. [19] [ 56 ] In the circumstances, the question is whether the terminological difference observed by the appellants in the French version of art. 30 , para. 2

(5) C.C.P. is truly determinative as to the basis of the right to appeal. By failing to mention judgments regarding the

quashing of administrative decisions, did the legislature actually intend that judgments such as this one be appealable as of right, as the appellants claim? [ 57 ] I do not believe so. The appellants’ position rests solely on a textual argument, an argument that does not consider the relevant text in its entirety. [ 58 ] When the legislature enacted art. 30, para. 2 (5), I believe that its intention was to require leave to appeal any judicial review judgment of the Superior Court whose subject matter was a quasi-judicial or administrative decision referred to in art. 529, para. 1 (2).

With respect to reviews of administrative decisions, the new law indicates that the procedural vehicle used to attack the decision does not matter because art. 539, para. 2 (2) merged actions in “nullity” and for “review” into a single vehicle, a[n] “[application for] judicial review/pourvoi en contrôle judiciaire”. [ 59 ] As stated by art. 34, para. 3 C.C.P. , “[a] matter is brought before the Court by means of an application for judicial review/[l]a cour est saisie au moyen d’un pourvoi en contrôle judiciaire.” The decision to mention one particular procedural avenue, a decision repeated in art. 529 , reflects a policy to simplify the judicial review procedure by limiting the formalism, that, in certain respects, has at times hindered the development of this branch of the law. [20] In her Commentaires on art. 529, the Minister wrote: [ translation ] “The

article groups and simplifies the former provisions by establishing the application for judicial review” and therefore unites [ translation ] “the different possible actions previously known as a direct action in nullity, an action for judicial supervision, evocation or review, mandamus , quo warranto , a motion for a declaratory judgment in administrative and constitutional law [...]”. [21] This vocabulary is consistent with a clearly deliberate legislative policy. [22] [ 60 ] Similarly, Bich, J.A. convincingly notes that judicial review and a direct action in nullity under the former Code are now treated as one, grouped together and called “an application for judicial review”. [23] For Professor Lemieux, the former exercise of characterizing the remedy – judicial review or an action in nullity [24] – is no more.

The legislature has left room, however, for another exercise to characterize applications depending on their subject matter, as set out in art. 529, para. 1 C.C.P. [ 61 ]

Article 529, para. 1 C.C.P. states that the judgment to be rendered by the reviewing court varies “depending on the subject matter”. In other words, the characterization of judicial reviews no longer depends on the procedural vehicle, but instead varies “depending on the subject matter/selon l’objet du pourvoi”. [ 62 ] What is the subject matter of the judicial review in this case? [ 63 ] The subject matter is comprised of three administrative acts: two municipal resolutions and a ministerial decision announced in a press release.

All these acts fall within the notion of administrative act rather than the notion of normative instrument. They are decisions with a limited and specific scope made within the scope of the process defined in the Police Act to create a police force. The municipal council did not create any rule of law; it only applied the Act to a particular situation. The same may be said for the Minister’s decision. [ 64 ] In my opinion, this explains why the review judgment in this case is appealable only with leave under the rule set out in art. 30 , para. 2

(5) C.C.P. It is first and foremost the “subject matter” of the judicial review within the meaning of art. 529 C.C.P. (“objet” in French) that dictates this conclusion. [ 65 ] In my view, the basis of the right to appeal judicial review judgments in the first paragraph (appeals as of right) and the second paragraph (appeals with leave) of art. 30 reflect this same legislative policy.

It is indeed conceivable that, in both cases, the legislature varied the right to appeal “depending on the subject matter/selon l’objet du pourvoi” rather than on the procedural vehicle insofar as this approach is formally rejected as a general rule in arts. 34 and 529 C.C.P . [ 66 ] That is what the English version of art. 30 , para.

(5) C.C.P. suggests, while the French version, read together with art. 529 , is ambiguous. The English version is more consistent with the overall scheme of the reform and as such more accurately reflects the legislative intent to streamline and simplify the basis of the right to appeal in these cases. This

interpretation is supported in particular by the explanations of the representative of the Ministère de la Justice to the Standing Committee on Institutions at the National Assembly when the Code was enacted. [25] [ 67 ] In the case at bar, the “subject matter/objet” of the judicial review, within the meaning of art. 529 , para. 1 C.C.P. , is not the procedural vehicle seeking a conclusion in nullity, but rather the administrative decisions of the municipal council and that of the Minister which are the target of the action. [26] These decisions, expressed in municipal council resolutions and a ministerial press release, are administrative acts as opposed to acts with a genuine normative scope. [ 68 ] It should be noted that the parties correctly agree that the application for judicial review presented in Superior Court is governed by art. 529, para. 1 (2), not by art. 529 , para. 1

(1) C.C.P. [ 69 ] Although the conclusion sought by the appellants is to quash a decision, the subject matter of their judicial review is “decision[s] made/décision[s] prise[s]” by the Ville de Mercier and by the Minister, i.e., “person[s] [...] under the authority of the Parliament of Québec” according to art. 529 , para. 1

(2) C.C.P. [ 70 ] When the subject matter is an administrative act, as are the municipal resolutions and the ministerial decision in this case – which are decisions made by a person subject to judicial review by the Superior Court – art. 30, para. 2 (5) states, using the same description of the subject matter as art. 529, para. 1 (2), that such judicial review judgments are appealable only with leave. [ 71 ] To clearly understand the relationship between these provisions, it is necessary to position the debate on the basis of the right to appeal in the context of the administrative procedure reform implemented by the new Code of Civil Procedure and, more specifically, the Superior Court’s general power of judicial review over municipal disputes, set out in arts. 34 and 529 C.C.P. [27] [ 72 ] It should be noted at the outset that the conclusions of nullity sought by the appellants in this case concern administrative acts, even “administrative decisions”, as opposed to normative instruments, subordinate legislation, as is generally the case for a municipal

by-law. [28] Resolutions 068 and 212, and the Minister’s authorization published in a release, are not general normative instruments but, rather, limited and specific decisions, which characterizes them as administrative decisions. [29] [ 73 ] Given the administrative nature of the impugned acts, the “subject matter/objet” of the judicial review is not, to repeat the wording of art. 529 , para. 1

(1) C.C.P. , an application to declare inapplicable, invalid or inoperative a provision of

an Act, a regulation, an order in council, a minister’s order or any other “rule of law/ règle de droit”.

In this case, the subject matter of the judicial review is, instead, to use the language of art. 529, para. 1 (2), to “review or quash […] a decision made by a person or body under the authority of the Parliament of Québec/réviser ou annuler […] une décision prise par un organisme ou une personne qui relève de la compétence du Parlement du Québec”. [ 74 ] The line between an administrative act and a normative instrument is not always easy to draw, but it is central to the distinction between the remedy contemplated by the legislature in art. 529, para. 1 (1) and that set out in art. 529, para. 1 (2).

In the first case, issues related to the “special rights of the State/droits particuliers de l’État” warrant notice to the Attorney General of Quebec, as required in art. 76, para. 1 C.C.P. It should be noted that the legislature uses language very similar to that found in art. 529, para. 1 (1). [30] Conversely, there is no such requirement for judicial reviews of administrative acts according to art. 529 , para. 1

(2) C.C.P. [ 75 ] The exercise of characterizing judicial reviews depending on subject matter is crucial to determining the basis of the right to appeal, under art. 30 C.C.P. , a Superior Court judgment dismissing or granting the application for judicial review.

As the appellants contend, the legislature does not treat all judicial review judgments that terminate a proceeding similarly with respect to the right to appeal. [ 76 ] In my opinion, the basis of an appeal of a judicial review judgment varies depending on whether its subject matter is the validity of a normative instrument or that of an administrative act. [ 77 ] If the subject matter is the validity of one of the normative instruments listed in art. 529 , para. 1

(1) C.C.P. , I am of the view that leave to appeal the judgment granting or dismissing the application is not required. In that case, the subject matter of the judicial review is not “a decision made by a person or body/une décision prise par une personne ou un organisme” (art. 30, para. 2 (5)). It is the normative nature of the instrument – be it a law, a regulation, an order in council, a minister’s order or any other rule of law – that justifies the judgment being appealable as of right.

On a technical level, the judgment determining this type of judicial review is not mentioned in any subparagraph of art. 30 , para. 2, with the result that the general rule in art. 30, para. 1 determines that the appeal is de plano . [ 78 ] On the contrary, the extraordinary recourse formerly known as mandamus now found in art. 529 , para. 1

(3) C.C.P. is expressly set out in art. 30, para. 2 (5). There is no doubt, therefore, that a judicial review to command the performance of

an act is appealable only with leave. This legislative choice is consistent with the idea that a judicial review whose subject matter is an administrative act must proceed with leave to appeal. The recourse in art. 529, para. 1 (3) contemplates what might be characterized as power related to the administration, [31] which at first glance falls within administrative acts, not normative instruments. [32] [ 79 ] Transposed to a municipal dispute, the distinction between administrative acts and normative instruments of a municipal council is known, even if it is not always easy to determine.

As Professors Hétu and Duplessis note, [ translation ] “a by-law is the way for municipalities to implement a legislative power conferred by the provincial legislature”. For these authors, a municipal by-law is [ translation ] “a normative instrument that is usually general and impersonal in nature”. [33] As subordinate legislation, a by-law challenged by way of judicial review would fall under art. 529, para. 1 (1), insofar as it enshrines a general standard of conduct and not a one-time decision.

In contrast – and again as a general rule – a municipal resolution will be characterized as an administrative act for the purpose of art. 529 C.C.P. because it [ translation ] “generally contemplates one-time acts whose duration or scope are often limited”. [34] By-laws normally fall into the category of “rule of law” within the meaning of art. 529, para. (1), while, in theory, this is not the case for resolutions – mere administrative decisions – that, due to their subject matter, are governed by art. 529, para. 1

(2) C.C.P. [ 80 ] I agree that the distinction between the subject matter of a judicial review that deserves to be characterized as a normative instrument and subject matter that is more an administrative act is not always easy to determine in a municipal dispute. [35] The validity of a municipal by-law may also be challenged due to its unreasonableness in an exercise that more closely resembles a judicial review contemplated under art. 529 , para. 1

(2) C.C.P. [36] I will not rule on the circumstances in which a judicial review of a municipal by-law is subject to the regime of art. 529, para. 1

(1) C.C.P. and leave the issue of the basis of an appeal on such a matter for another time. [37] [ 81 ] There is no debate here. The parties correctly agree that the two impugned council resolutions as well as the Minister’s decision are not “rule [ s ] of law” within the meaning of art. 529, para. 1 (1), but rather decisions contemplated in subparagraph 2. The purpose of the resolutions is to settle a one-time situation, not to establish a normative instrument of a general nature.

The subject matter of the judicial review in this case is, therefore, the validity of administrative acts. [ 82 ] In light of the foregoing, I find that the appellants’ position disregards the legislature’s clear directive that under the aegis of the new Code, judicial reviews are governed differently depending on their subject matter. The Code states in its art. 30 that where the subject matter is the legality of an administrative act as opposed to the legality of a normative instrument, judicial reviews proceed differently on appeal. [ 83 ] In this case, the appellants therefore required leave.

IV Whether leave to appeal should be granted [ 84 ] The appellants submit that they should not be penalized for the confusion arising from the application of the new rules of civil procedure and that in these circumstances, their counsel’s error could be the basis of an impossibility to act. They further note that not more than six months have elapsed since the judgment and state that they were diligent in presenting an application for leave to appeal. Moreover, they claim that their recourse is in no way frivolous or dilatory.

[ 85 ] The Court accepts the appellants’ arguments with respect to the impossibility to act. In Douek c. Brossard , [38] this Court established that [ translation ] “in the context of the recent legislative amendments to civil procedure, an attorney’s error” might amount to [ translation ] “an impossibility to act for the appellants”. [39] It is not seriously contested that the appellants were diligent in this case by presenting an application for leave to appeal as soon as possible.

Nor is it contested that not more than six months have elapsed since the judgment. [ 86 ] However, what of the appellants’ burden of presenting an issue that should be submitted to the Court and the appeal’s reasonable chance of success? [ 87 ] I do not believe that either of these conditions has been met here. [ 88 ] First, whether the time elapsed between the adoption of the resolutions and the institution of proceedings was reasonable is not a new issue, a question of principle, or one that has given rise to conflicting judicial decisions ( art. 30 , para. 3 C.C.P. ).

Similarly, whether the impugned resolutions had a concrete effect on the Minister’s authorization is a highly factual issue. [ 89 ] Second, it is clear that the appellants’ appeal in this case has, on its face, no reasonable chance of success. [ 90 ] Although characterized as grounds of law, the appellants’ arguments raise only questions of fact or, at most, questions of mixed law and fact as to the assessment of the reasonableness of the delay. The judge has broad discretion in this respect.

Determining the reasonableness of a delay falls within the discretion of trial judges because they are in the best position to do so. [ 91 ] Faced with this highly factual exercise, the Court will intervene only if the power was unreasonably exercised or if the appellants establish that the judge made a palpable and overriding error. [40] Relying in particular on the Supreme Court judgment in Immeubles Port-Louis ltée v. Lafontaine (Village) , [41] in Québec (Procureur général) c.

Bélanger [42] the Court wrote: [ translation ] [30] [...] the Superior Court, under its superintending power, has broad discretion to determine whether the time between the disputed act and the service of proceedings was reasonable. [31] In Matane (Ville) c.

Fraternité des policiers et pompiers de la ville de Matane , the Court decided, with respect to the appellate standard of review, that “unless the appellants establish that the judge relied on erroneous tests or drew abusive conclusions from otherwise valid tests, I find that an appellate court should simply not substitute its assessment for that of the judge”. […] [33] In Syndicat des employés de commerce de Rivière-du-Loup c. Turcotte , the Court of Appeal defined the criteria to consider when assessing the reasonableness of the delay.

Among other things, to be considered are the matter in question, the basis of the right, the nature of the decision-making body, the nature of the order, its consequences, the reasons for the delay, etc. [References omitted.] [ 92 ] The appellants raise no argument likely to result in this Court’s intervention with regard to the judge’s exercise of his [ translation ] “broad discretionary power”.

They identify no weakness that might have had a decisive impact on the judge’s factual analysis or any error in assessing or applying the legal principles. [ 93 ] Contrary to what the appellants plead, the judge wholeheartedly believed, based on the facts alleged in the motion, that the resolutions had a concrete effect as soon as they were adopted. [43] A reading of the resolutions themselves confirms this. Under Resolution 068, an immediate request was to be made to the Minister for the authorization to create a police force.

Resolution 218 states that Mercier was to immediately inform the Minister and the Ville de Châteauguay of its decision not to enter into a new agreement.

The judge correctly ruled that these immediate effects started the time limit as soon as the first resolution was adopted, that is, nine months before proceedings were filed. [ 94 ] Moreover, the appellants rapidly learned of the alleged defects in the public consultation process, as evidenced by their formal notice sent to Mercier on March 12, 2015, two days after Resolution 068 was adopted. [ 95 ] The judge’s observation regarding the appellants’ insincere belief that the Minister would refuse the request was based on the wording of paragraph 42 of their amended motion to institute proceedings, which describes the [ translation ] “dozens of interviews” given by their representatives to defeat the project. [ 96 ] In this regard, the judge did not fail to [ translation ] “weigh” the appellants’ argument that they were waiting for the Minister’s consent [ translation ] “before taking legal action”.

He merely concluded, after devoting paragraphs [40] to [43] of his analysis to this issue, that this argument was contradicted by their subsequent conduct. According to the judge, this conduct shows that they [ translation ] “felt it necessary to take steps to influence the outcome, because they had doubts”. [ 97 ] Even though the judge did not specifically discuss the four-month delay between the second resolution and the proceeding, it is clear from the judgment that he also considered it unreasonable for the same reasons. In the circumstances, it was pointless to wait for the Minister’s authorization.

Even on this point, the additional 42-day delay before instituting legal proceedings cannot be explained. [ 98 ] Nor have the appellants proved the merits of their allegation that the judge [ translation ] “only very summarily” analyzed the relevant criteria in his reasons. It appears from the judgment that, after discussing the applicable principles in paragraphs [22] to [32], the judge not only considered their [ translation ] “sincere belief” (paras. [40] to [43]), but also assessed their conduct in detail (paras. [34], [35], [38], [39], and [48] to [50]).

The judge also considered the interests of justice in disregarding the unreasonable delay, given the additional costs and delays caused to the respondent Mercier (paras. [62] and [63]).

[ 99 ] The argument that the judge acted ultra petita by dismissing every conclusion sought in the appellants’ motion is unfounded on its very face. A reading of Mercier’s notice disclosing its exception to dismiss reveals that Mercier sought, as a conclusion, the outright dismissal of the motion to institute proceedings. [ 100 ] Even assuming that the amended motion raises an issue that warrants the Court’s attention, in my opinion the proposed appeal is bound to fail.

I propose that the Court dismiss the appellants’ application for leave to appeal after the expiry of the time limit, with legal costs for the respondents Ville de Mercier and the Attorney General of Quebec and the impleaded party Michaud. In the circumstances, the respondents’ application to dismiss the appeal should be granted and the appeal dismissed, the whole with legal costs for the respondent Ville de Mercier and the impleaded party Michaud, but without costs for the Attorney General, who did not participate in the arguments on the merits.

There will be no order for costs for the Ville de Châteauguay because it did not participate in the arguments on appeal. NICHOLAS KASIRER, J.A.