2023 QCCQ 2010, 2023 QCCQ 2010

City of Joliette c. 9361-8346 Québec inc. (Restaurant Bharati) 2023 QCCQ 2010 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF JOLIETTE Civil Division No: 705-32-016962-208 DATE: March 6, 2023 ________________________________________________________________ BY THE HONOURABLE PATRICK CHOQUETTE, J.C.Q. ________________________________________________________________ CITY OF JOLIETTE Plaintiff v. 9361-8346 QUÉBEC INC. (Restaurant Bharati) Defendant _______________________________________________________ JUDGMENT ________________________________________________________________ [ 1 ] The city of Joliette seeks to recover the sum of $ 8 533.53 from 9361-8346 Quebec inc. (Bharati) for assessments owed to the Société de développement commercial (SDCJ), for years 2018 and 2019, and accrued interests. [ 2 ] Bharati contests on the grounds that the assessments are unreasonable and that it is not receiving any services in counterpart from the SDCJ. [ 3 ] Nevertheless, Bharati deposited with the clerk of the Court of Québec the sum of $ 8 533.53 under protest, on May 10, 2022.

THE QUESTION AT ISSUE

a) Is the city of Joliette entitled to recover the sums owed to the SDCJ? ANALYSIS [ 4 ] Bharati was incorporated in 2017 for the operation of an Indian food restaurant in the City of Joliette. [ 5 ] According to its president, Mr. Abdul Mannan, it is advantageously located, facing the CEGEP, at the entry of the zone defined as downtown Joliette. [ 6 ] Mr. Mannan recalls having been informed of the existence of the SDJC and that it covered the sector where Bharati is located.

Its purpose is to promote and develop services and businesses located within its radius. [ 7 ] Membership is mandatory and yearly assessments would remain under $ 1 000. [ 8 ] He was therefore upset to receive a first assessment of nearly $ 3 500 for year 2018. [ 9 ] He voiced his dissatisfaction to SDJC general manager Mrs. Joanne Dubois, that Bharati was receiving close to zero counterpart [1] and that it is some disguised taxed. He also contested that Bharati was assessed based on total superficies including the

basement which it did not use for commercial operation. [ 10 ] Mr. Mannan also wrote to local and provincial politicians to intervene, that the assessment by the SDCJ was suffocating its restaurant and that it was unfair for small businesses in downtown Joliette as compared to other businesses not located within that perimeter [2] . [ 11 ] He also filed over 15 written declarations of past and present business owners expressing their dissatisfaction with the SDCJ [3] . [ 12 ] Mr. Mannan offered 2 cheques of $ 1 500 [4] each in payment which were refused by Mrs. Dubois.

She denies having been given these cheques but adds she had no authority to accept them. [ 13 ] Mrs. Julie Bourgie, chief financial officer of the City of Joliette, explains that the SDCJ is created in accordance with bylaw 29- 2001 [5] as provided for by articles 458.1 and ss. of the Cities and Towns Act [6] . [ 14 ] She confirms that the basement is not comprised in the dimensions used to establish the assessment for Bharati. It is calculated in terms of a percentage of the non-residential portion of the building over the municipal assessment [7] . [ 15 ] Mrs.

Dubois explains the services rendered by the SDCJ [8] and that it retained nearly all its members despite the effects of the pandemic. [ 16 ] Bharati deposited with the clerk of the Court of Québec the sum of $ 8 533.53 under protest, on May 10, 2022. Mr. Mannan explains that this was mandatory for the restaurant to qualify for a government subsidies special help program.

a) Is the city of Joliette entitled to recover the sums owed to the SDCJ? [ 17 ] The power to create a “ Société de développement commercial ” emanates from the Cities and Towns Act : 458.1. The council may, by by-law, define the limits of a commercial zone within which a single commercial district may be formed, comprising at least 50 places of business and more than 50% of the places of business in that zone, and provide for the establishment of an initiatives and development association having jurisdiction in that district.

For the purpose of this subdivision, a business establishment and the ratepayer who operates or occupies it are a taxable business establishment and its occupant, respectively, within the meaning of the Act respecting municipal taxation (chapter F-2.1 ). 458.2. Such an association may promote the economic development of the district, establish joint services for its members and their customers, operate a business in the district, erect and manage a parking garage or parking lot and carry out work on public property or private property with the consent of the owner. (…) 458.28.

The rules governing the computation of the assessments of the members, the payments and the dates they become due are established by by-law. The rules may provide a minimum or maximum limit to the amount or share of the assessments that the members may be required to pay. 458.29. The assessments are ordered on the ratepayers having a place of business on the first day of the fiscal period for which the budget is deposited. (…) 458.32.

An assessment ordered under this subdivision is deemed a special business tax for the purposes of its collection and the clerk and the treasurer have all the powers vested in them in that respect by this Act and the Act respecting municipal taxation (chapter F-2.1 ). The assessments collected, minus collection costs, and the list of the members who have paid them are remitted to the association. (Underlined by the Court) [ 18 ] The town of Joliette has created its own SDCJ by virtue of its by-law 29-2001 [9] . [ 19 ] The assessments owed are deemed a special tax assessment.

It is based on the value of non-residential use of a building and not on the value of the counterpart in services rendered. [ 20 ] The small claims division of the Court of Québec has no jurisdiction on the questions of its means of calculation or whether or not this tax is invalid or abusive [10] . [ 21 ] The grievances submitted by Bharati may not therefore serve as valid grounds of defence before this Court. [ 22 ] However, the Court must decide on the issue of the effects of the cheques offered and payment under protest. [ 23 ] Joliette’s claim was served upon Bharati on October 2nd, 2020, and requests payment of daily interests of $ 1.89 since August 27, 2020. [ 24 ] Had the SDCJ or Joliette accepted partial payments offered by Bharati, the claim would have been less by $ 3 000 as of February 15, 2020, and the accrued interests reduced accordingly. [ 25 ] The Court is convinced of defendant’s good faith and that its grievances are not frivolous, although not filed in the proper forum.

It also filed written declarations by numerous other businesspersons rather than have them testified in Court in keeping its means of

contestation within the scope of proportionality. [ 26 ] Bharati also deposited the full amount claimed in capital with the clerk of the Court. [ 27 ] The Court, in the exercise of its discretion declares that the deposit of the sum of $ 8 533.53 to be payment in full of Plaintiffs’ claim in capital, interests and costs.

WHEREFORE, FOR THESE REASONS, THE COURT: [ 28 ] GRANTS in part Plaintiff’s demand. [ 29 ] DECLARES that 9361-8346 Québec inc. owes the City of Joliette the sum of $ 8 533.53 in capital and interests. [ 30 ] DECLARES that 9361-8346 Québec inc.’s deposit of the sum of $ 8 533.53 with the Clerk of the Court of Québec is a valid and full payment in accordance with the present judgment. [ 31 ] AUTHORIZES the clerk of the Court of Québec to pay to the City of Joliette the said sum of $ 8 533.53 at the expiry of a 30-day period from the date of the notice of judgment. [ 32 ] WITHOUT COSTS . __________________________________ PATRICK CHOQUETTE, J.C.Q.

Date of hearing: November 17, 2022