2019 QCCA 1376, 2019 QCCA 1376

Jardin d'enfants Curzon c. Attorney General of Quebec (Ministère de la Famille) 2019 QCCA 1376 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026989-178 (500-17-098352-175) DATE: August 14, 2019 CORAM: THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. MARIE-JOSÉE HOGUE, J.A. GENEVIÈVE COTNAM, J.A. JARDIN D’ENFANTS CURZON APPELLANT – Plaintiff v.

ATTORNEY GENERAL OF QUEBEC (MINISTÈRE DE LA FAMILLE) RESPONDENT – Defendant JUDGMENT [ 1 ] The appellant, Jardin d’enfants Curzon, is appealing a judgment rendered on July 7, 2017, by the Superior Court, District of Montreal (the Honourable Marc St-Pierre), which dismissed its application for injunctive and declaratory relief. [1] Context [ 2 ] The appellant is a nursery school which has been operating a pre-kindergarten program for over 50 years.

Its enriched program has been running since 2002. [ 3 ] For the 2016-2017 school year, it ran two morning groups: the owl group and the pussycat group, which met five mornings per week between 8:40 and 11:45. The owl group, made up of children aged 4 and 5, contained 21 children.

The pussycat group, made up of children aged 3 and 4, contained 15 children. [ 4 ] In addition to its regular morning classes, the appellant also ran an enriched program twice a week in the afternoon, providing classes to subsets of the owl and pussycat groups on Tuesday and Thursday, for a group of seven students each from 12:00 to 3:00 pm for the owl group and from 12:00 – 2:00 pm for the pussycat group.

This enriched program lies at the heart of its dispute with the Ministère de la Famille et des aînés (“the Ministry”). [ 5 ] Under the Educational Childcare Act [2] (“the Act”), the provision of educational childcare services is a licensed activity. The appellant does not hold a permit.

Section 153 of the Act provides an exemption for persons operating a nursery school, which has been in operation since October 25, 2005. [3] [ 6 ] Under

section 153, a nursery school is defined as “an establishment that provides educational childcare in a facility where seven or more children from two to five years of age are received, in a stable group, on a regular basis for periods not exceeding four hours a day and are offered activities conducted over a fixed period .” [ 7 ] The appellant claims to fall within that exception. The Ministry disagrees. [ 8 ] In light of the services offered to the enriched group, the Ministry claims that the appellant receives “seven or more children, in a stable group, on a regular basis” for periods exceeding four hours and therefore, does not fall within the exception of

section 153. [ 9 ] A series of letters were exchanged between the parties regarding the appellant’s legal status, leading up to the Ministry’s determination that the appellant’s program is run in violation of the Act. [ 10 ] On March 7, 2017, the Ministry notified the appellant that its operation violated the law and that in order to comply with the Act, it would have to limit the service offered to each child to four hours per day or offer services to six or less children. The Ministry threatened to shut down the appellant’s operations if it failed to comply by March 13, 2017.

[ 11 ] On March 15, 2017, Mtre Emira Tufo, the appellant’s lawyer at the time, wrote to the Ministry proposing an alternate

interpretation of the Act based on the Ministry’s letter dated November 28, 2016. In this letter, the Ministry had confirmed that the appellant was a nursery school that operated legally without a permit, but had reminded the appellant that it would be under constant scrutiny and would be subject to upcoming verifications to ensure that it remained compliant with

section 153 of the Act, more particularly regarding the maximum of 4 hours of services provided per day. [ 12 ] On April 5, 2017, the Ministry answered Mtre Tufo’s letter, reaffirming that the appellant was operating unlawfully. [ 13 ] The Ministry contends that, in November 2016, it was unaware of the existence of the enriched program because none of the documents submitted by the appellant leading up to this letter made any reference to the afternoon program. [ 14 ] On April 12, 2017, the appellant nursery school applied for provisional, interlocutory and permanent injunctions seeking an order to prevent the Ministry from closing and evacuating its premises [4] , as well as a declaration that the enriched program offered at a pre-kindergarten level since 2002 is not offered to a “stable group” as contemplated under

section 153 of the Act, so as to enable the appellant to operate without a childcare centre permit. The appellant also sought a declaration that the Ministry had acted in an abusive manner by threatening a forced evacuation of the nursery school in the absence of any harm to the children and that

section 120 of the Act did not apply absent any issue of the children’s health and safety. [ 15 ] When the matter was heard on June 28, 2017, the appellant sought a permanent injunction and declaratory relief. [ 16 ] On July 7, 2017, the Quebec Superior Court dismissed the application without rendering any declaratory conclusions. [ 17 ] In appeal, the appellant argues that the first instance judgment failed to answer the questions “in a clear manner.” At the hearing, it went so far as to qualify the trial judge’s reasons as being “unintelligible” and it asked the Court to substitute its own analysis of the issues based on the pleadings and on the applicable law, as well as to render the judgment that should have been rendered in first instance, including the relevant declaratory conclusions. [ 18 ] The trial judge’s reasons are set out in 17 paragraphs each beginning with “whereas.” While the structure of the judgment may have been intended to provide a clear and concise answer, it fails to achieve this goal: the reasons are far from clear.

That being said, it does not necessarily follow that the conclusions are wrong or should be overturned, nor that the trial judge would have committed a reviewable error or failed to appreciate the evidence when dismissing the application. As was previously outlined by this Court in Droit de la famille – 132765 : [5] [9] L'insuffisance des motifs d'un jugement ne signifie pas nécessairement que le juge s'est trompé ni qu'il n'a pas apprécié toute la preuve devant lui.

L'insuffisance de motifs ne donne pas un droit automatique à un nouveau procès en première instance. [10] Il pourra arriver, en cas d'omission par le juge d'analyser ou encore de tenir compte de la preuve apportée devant lui, qu’une cour d’appel puisse et doive, dans l'intérêt des parties, pallier la difficulté en évaluant elle-même la preuve, pour ensuite disposer du litige. À

titre d'exemple, dans l'affaire Droit de la famille – 091541 , malgré l'absence d'une motivation convenable, la Cour a été en mesure d'évaluer la preuve faite en première instance et de rendre les ordonnances qui auraient dû être rendues. [References omitted] [ 19 ] As a result, the Court is required to perform its own review of the pleadings and of the applicable law in order to determine whether the trial judge rightfully dismissed the application and if not, to render the conclusions that should have been rendered in first instance with supporting reasons. [6] [ 20 ] From what the Court can discern of his reasoning, the trial judge essentially held that the enriched program offered by the appellant nursery school extended the provision of childcare services such that it was no longer running a nursery school as defined by the Act and its unlicensed operation violated the clear wording of

section 153 of the Act. He also concluded that

section 120 of the Act allowed the Ministry to act immediately in shutting down unlicensed childcare facilities and that any threat by the Ministry to close down the appellant was legitimate, as nothing in the wording of the Act forced the Ministry to seek a judgment before shutting down the nursery school. He refused to weigh in on the issue of a potential violation of

section 7 of the Canadian Charter of Rights and Freedom , given that the appellant had failed to provide adequate notice of a constitutional challenge to the Attorney General of Quebec. Issues in Appeal [ 21 ] In appeal, the appellant raises the two following issues: 1. Does the enriched program violate the law? 2. In the affirmative, does the Ministry have the right to evacuate all the children and close both the afternoon and the morning programs without a hearing or judicial procedure? Legal Analysis 1.

Does the Enriched Program violate the law? [ 22 ] The appellant argues that there is no “stable” group of seven or more students meeting for more than four hours per day so as to fall under

section 153 of the Act, because the afternoon group is not identical to the morning group. [ 23 ] For the appellant, the word “stable can only mean the same groups meeting both morning and afternoon.” It relies on what it believes to be the literal meaning of the statute and bolsters its argument by pointing to the fact that the Minister has a duty to develop and maintain educational childcare and aid the development of childcare.

[ 24 ] In addition, the appellant points to the general requirement, per

section 33 C.C.Q ., that every decision be taken with regard for the best interest of the child. It also claims to be entitled to benefit from acquired rights for both the morning and afternoon programs as if they were run separately. [ 25 ] Finally, it argues that since it runs a well-functioning institution, any

interpretation of the law that would lead to its shutting down is absurd and violates the rules of statutory

interpretation. [ 26 ] The respondent, on the other hand, takes a much broader view of the definition of a stable group. It points to parliamentary transcripts which reveal that the legislature considered a stable group to be a group that regularly meets with the same children and the same number of children. The transcripts also state that there may be some variance but there must be general stability. [ 27 ] The respondent argues that the 14 children who are part of the enriched program are a stable group of children. They regularly meet and they have a regular composition.

Since they meet for more than four hours twice a week, according to the respondent, the appellant is violating the terms of the exemption. * * * [ 28 ] Is the appellant operating as a nursery school within the meaning of

section 153 of the Act so as to be exempted from the application of

section 6 of the Act? If it does offer services to a stable group of seven or more children for more than four hours in a day, it cannot qualify as a nursery school and does require a permit, failing which it would be operating illegally. [ 29 ] It is admitted that the appellant is providing childcare services in return for parental contribution and that it is operating without a permit. It is also admitted that certain children receive more than four hours of childcare in a day. [ 30 ] The basic tenet of statutory

interpretation is that “the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of parliament.” [7] [ 31 ] In addition to this basic rule, specific rules pertaining to exceptions in legislative schemes have also been articulated. As Ruth Sullivan outlines in her treatise on statutory

interpretation, “courts have taken a strict approach to provisions that create an exception to general law […] because there is a general discomfort toward exceptions from fundamental principle s and well-established policies.” [8] [ 32 ] This is echoed by P.A. Côté who writes that “les tribunaux mettent en valeur l’uniformité du droit. Alors, en cas de doute, on va appliquer la règle générale plutôt que l’exception.” [9] [ 33 ] Courts will occasionally interpret a statute in an attempt to avoid a specific outcome that they consider to be absurd. An absurd result is one that “violate(

s) a norm that is important to the legislature or society generally, this violation must be evident and serious.” [10] [ 34 ] In Rizzo Shoes [11] , the Supreme Court explained that “an

interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment.” [ 35 ] In my opinion, the wording of

section 153 of the Act as well as its role within the broader legislative scheme supports the

interpretation given to it by the Minister. There is no absurdity in the result reached. In fact, it is the consequences of the appellant’s

interpretation that seem, upon close examination, to lead to an unreasonable or illogical outcome. [ 36 ] The Act sets out a robust framework for the regulation and licensing of educational childcare facilities, under the basic principle that providing educational services to children is a licensed activity. Any derogation from this principle should therefore be interpreted while keeping in mind the clear legislative intention to exert regulatory control over educational childcare activities. [ 37 ] In interpreting the Act, courts should avoid giving such a broad

interpretation of the words “stable group” so as to allow childcare providers to easily skirt regulation and render the Act ineffective or toothless. The appellant’s proposition that for a group to be stable it must contain all of the children under the supervision of the childcare facility every time it meets seems to do just that. [ 38 ] In order for a group to be stable it must simply be clearly defined, recognizable and meet with regularity.

This is in line with the ordinary sense of the word stable. [ 39 ] In this case, a readily identifiable subset of 14 children regularly receives more than four hours of childcare per day. As such, the appellant operates a childcare facility which is not a nursery school in the sense of

section 153 of the Act, as it is not licensed to do so. [ 40 ] The appellant’s argument that this outcome is absurd because the facility offers quality services cannot stand. The mere fact that someone conducts a licensed activity without any incident cannot serve to soften the licensing requirements the law imposes on that person. [ 41 ] The appellant postulates that since not every child is enrolled in the enriched program, the group is not stable. This is an overly formalistic

interpretation of the law, in itself absurd. This logic would dictate that a childcare facility could fall within the ambit of

section 153 of the Act regardless of how often and for how long its children meet provided that at least one child is not receiving more than four hours of services daily. Simply pulling one child out of the main group before the additional activities are carried out would render the group unstable. This cannot possibly have been the intention of the legislator. [ 42 ] In fact, in the context of an interlocutory judgment, where a childcare provider created a second corporation to extend its hours of service without exceeding four hours per entity, the Quebec Superior Court held that the Act should not be given overly technical

interpretations so as to “make it too easy to get around the four-hour rule.” [12] In the case at hand, the appellant is suggesting that the Court do just that by considering the morning and afternoon programs separately. [ 43 ] The appellant’s final argument calling for an

interpretation which would permit the continued operation of a well-functioning childcare facility and which is based on the general principle that decisions should be taken in the best interest of the child cannot stand either. [ 44 ] The appellant’s acquired rights to operate a nursing school in accordance with

section 153 of the Act, do not allow it to avoid the conditions set out in this

section and to provide more than seven children with more than 4 hours of its enriched program per day. [ 45 ] The legislator has opted to regulate the facilitation of childcare services in order to protect the best interests of children. As the first

section of the Act states, “The object of this Act is to enhance the quality of the educational services provided by childcare providers covered by this Act so as to ensure the health and safety of the children to whom childcare services are provided, particularly those with special needs or who live in a precarious socio-economic situation, foster their development, educational success and well-being and provide them with equality of opportunity.” [13] [ 46 ] The complex licensing scheme was itself developed in the interest of the children.

A broad provision in the Civil Code cannot overrule the clear wording of a specific and detailed regulatory scheme. [ 47 ] It should be pointed out that the Minister’s letter of November 28, 2016, did recognize the appellant’s right to operate a nursery school, but it did so in the particular context that the appellant chose to divulge to the Ministry at the time. While the appellant submitted a number of documents to justify it being compliant with

section 153 of the Act, any reference to the afternoon program was conspicuously absent. For example, a document entitled “daily schedule” claiming that the day care opens at 8:30 and closes at 12:15 could hardly be said to reflect the appellant’s enriched program schedule. The Ministry specifically warned the appellant that it would need to remain compliant to the Act and would be subject to scrutiny.

The argument of acquired rights based on the Ministry’s letter is devoid of any merit whatsoever. [ 48 ] For these reasons, the Court concludes that the appellant’s enriched program as offered by the appellant for the years 2016-2017 was operated in violation of the Act in the absence of the required childcare centre permit and the Court proposes to answer the first question affirmatively and to maintain the dismissal of the application as ordered in first instance. 2.

If the enriched program is found to violate the law, does the Ministry have the right to evacuate all the children and close both the afternoon and the morning programs without hearing or judicial procedure? [ 49 ] The appellant has asked the Court to make declarations with respect to two related but distinct legal questions. The goal of the first question was to determine whether the appellant’s program violated the conditions of the Act in the absence of the required childcare centre permit. [14] The Court has concluded that it does.

The second question is concerned with the Ministry’s right to close down and evacuate the premises, which operate in violation of the law, under

section 120 of the Act. [ 50 ] The appellant argues that it is entitled to a hearing although

section 120 of the Act explicitly states that the Minister may immediately close the childcare facility once it learns that it is operating without a licence. Without making reference to any case law or legal principle, the appellant argues that this provision does not apply to it because it is not brazenly operating without a permit. [15] [ 51 ] The appellant claims that the respondent “like any litigant must obtain a civil or penal judgment to get redress” and that this conclusion is consistent with natural justice, fundamental justice and

section 23 of the Quebec Charter, although it is careful to point out that it does not believe that

section 153 should be invalidated but rather that it should be interpreted not to apply to the appellant. [ 52 ] Finally, the appellant argues that “in a society in which day-care places are hard to find, it is absurd to place parents in danger of losing their jobs and children in danger of being less socialized and less educated because of technical disputes which can be resolved by a judgment.” [ 53 ] The respondent answers by simply pointing to the clear wording of the statute which reads as follows: 120.

Lorsque, dans un local, sont exercées sans permis des activités pour lesquelles un permis ou une reconnaissance en vertu de l’article 6 est exigé, le ministre peut, après avoir avisé les parents des enfants reçus dans ce local, faire procéder, aux frais du responsable de ce local, à l’évacuation des enfants et à la fermeture immédiate de ce local même avant que des poursuites ne soient intentées en vertu de l’article 108.1. Le ministre doit, de la même manière, faire procéder à l’évacuation s’il est d’avis que la santé ou la sécurité des enfants a pu être compromise ou pourrait l’être. 120 .

If, in a facility, activities requiring a permit or recognition under

section 6 are carried on without a permit, the Minister may, after notifying the parents of the children to whom childcare is provided, have the children evacuated and close the facility immediately at the expense of the person in charge of the facility, even before proceedings are instituted under

section 108.1. The Minister must, in the same manner, have the children evacuated if the Minister considers that their health and safety may have been or could be compromised. [ 54 ] In the Court’s view, given that the alleged violation of the Act has been debated both before the Superior Court and this Court and was the subject of a judicial determination which confirmed the said violation, the issue of a right to a fair hearing or judicial procedure has become moot. There is no need for this Court to address the arguments raised by the appellant. The Ministry would be justified in applying the sanction provided for under

section 120, and proceed with the closing and evacuation of the premises, after

notification of the parents of the children, should the appellant fail to change its conduct by reducing the hours of service offered, or fail to acquire the required licence or to cease its operations and this, without the need for any additional prior judicial order. FOR THESE REASONS, THE COURT: [ 55 ] DISMISSES the appeal with legal costs. GENEVIÈVE MARCOTTE, J.A. MARIE-JOSÉE HOGUE, J.A. GENEVIÈVE COTNAM, J.A. Mtre Julius Grey, Ad. E. GREY & CASGRAIN For Appellant Mtre Charles Gravel BERNARD ROY (Justice-Québec) For Respondent Date of hearing: April 3, 2019 153.

Les dispositions de l’article 6 ne s’appliquent pas à la personne qui exploite un jardin d’enfants et qui établit que le 25 octobre 2005 , elle exploitait ce jardin d’enfants. On entend par «jardin d’enfants» un établissement qui fournit des services de garde éducatifs dans une installation où l’on reçoit, de façon régulière et pour des périodes qui n’excèdent pas quatre heures par jour, en groupe stable, au moins sept enfants âgés de deux à cinq ans auxquels on offre des activités se déroulant sur une période fixe. [Emphasis added]