2022 QCCQ 4800, 2022 QCCQ 4800

Krivosheeva c. Ville de Montréal 2022 QCCQ 4800 COURT OF QUEBEC (Administrative and Appeal Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-80-042730-227 DATE: July 14, 2022 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ ELENA KRIVOSHEEVA Applicant v.

VILLE DE MONTRÉAL Respondent ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The applicant seeks leave to appeal from a decision of the Tribunal administratif du Québec – immovable property division, dated March 4, 2022 (“ TAQ-2 ”) [1] which dismissed her application under

section 154 of the Act respecting administrative justice , ( CQLR, c. J-3 (“ ARAJ ” or “ Act ”), for review or revocation of an earlier decision from a different TAQ panel dated December 15, 2021 (“ TAQ- 1 ”) [2] . TAQ-1 dismissed the applicant’s application for review of two certificates of alteration for the 2020-2021-2022 triannual role. [ 2 ] The respondent raises a preliminary exception with respect to the application for leave on the grounds it was not filed within the 30 day peremptory limit provided for in

section 160 of the ARAJ . Moreover, it submits that the applicant has not established that she was unable to act during this time period. [ 3 ] Subsidiarily, the respondent argues that the issues raised by the intended appeal are not ones which ought to be submitted to the Court of Québec and as such leave should not be granted. [ 4 ] The application for leave raises the following issues: 1. Was the application for leave filed after the expiry of the 30 day peremptory time limit? 2.

If the application for leave was filed after the expiry of the 30 day time limit, was it impossible in fact for the applicant to act earlier? 3. If the application for leave is not time-barred, does the appeal raise questions which ought to be submitted to the Court of Québec? CONTEXT [ 5 ] A brief review of the procedural and factual context that led to the TAQ-1 and TAQ-2 decisions is required before considering the issues raised by the application for leave. [ 6 ] The applicant is the owner of three lots, namely lot Nos [1], [2] and [3] of the Cadastre of Québec of the registry division of Montréal.

The applicant’s lots are divided into two units of assessment. [ 7 ] The applicant’s units had each been placed on the assessment role for 2020-2021-2022 triannual role at a value of $1. [ 8 ] On April 23, 2020, the respondent’s municipal assessor issued two certificates of alteration for the 2020-2021-2022 triannual role to correct the value of the units of assessment to $76,800 and $186,600 respectively. [ 9 ] Within the delays provided for in the Act respecting municipal taxation (CQLR, c. F-2.1 ), the applicant contested these new assessments before the immovable property division of the TAQ.

A common hearing was held for both units of assessment on November 29, 2021. [ 10 ] On December 15, 2021, the immovable property division of the TAQ rendered TAQ-1 and dismissed the applicant’s application to review the respondent’s assessments of her properties.

[ 11 ] On January 17, 2022, the applicant filed pursuant to

section 154 ARAJ an application for review or revocation of TAQ-1. [3] [ 12 ] On March 4, 2022, the TAQ rendered TAQ-2 and dismissed the applicant’s petition for review or revocation of TAQ-1. [4] [ 13 ] On April 19, 2022, the applicant filed her application for leave to appeal of TAQ-2. [ 14 ] On the same day, she filed an application for judicial review of TAQ-2 before the Superior Court. [5] [ 15 ] The applicant has never sought leave to appeal from TAQ-1. DISCUSSION 1. Is the application for leave to appeal filed after the expiry of the 30 day time limit? [ 16 ] TAQ-2 is dated March 4, 2022.

The respondent concedes that the applicant only received the decision on March 16, 2022. [ 17 ] She filed her application for leave on Tuesday April 19, 2022. [ 18 ] The respondent argues that the 30 day time limit provided for in

section 160 ARAJ began to run on the day of the decision, namely March 4, 2022. Since the 30 day limit to file the application for leave to appeal expired on Monday April 4, 2022, the application filed on April 19 is tardy. [6] [ 19 ] The applicant argues that the application for leave was filed in a timely manner. She states that the 30 day delay only began to run on March 16, 2022, the day on which she received a copy of TAQ-2. Under normal circumstances, Friday April 15 2002 was the deadline to file her application for leave to appeal. However, considering that both Good Friday (April 15) and Easter Monday (April 18) are considered holidays under section 61(23) of the

Interpretation Act , the deadline to file her application for leave was extended to Tuesday April 19, 2022. Since she filed her application for leave on that day, it was filed in a timely manner. [ 20 ] There is no need to determine whether the applicant filed her application for leave beyond the peremptory 30-day time limit nor whether it was impossible in fact for her to act earlier, because even if the applicant had not forfeited her right to appeal, the Court considers that the intended appeal does not meet the criteria for leave set out in

section 159 ARAJ . 2. Does the appeal of TAQ-2 raise questions which ought to be submitted to the Court of Québec? 2.1 The test for leave [ 21 ] There is no appeal as of right from a decision of the immovable property division of the Tribunal administratif du Québec. As per

section 159 ARAJ , an appeal from such a decision lies to the Court of Québec but only with leave of a judge of this court and only where “the matter at issue is one which ought to be submitted to the Court of Québec.” [ 22 ] The test for leave set out in

section 159 of the Act has been the subject of extensive case law from this court. In addition, this test is similar to the test for leave found in other statutes, including

article 30 paragraph 3 of the Code of Civil Procedure (CQLR, c. C-25.01 ) and

section 91 of the Act respecting the administrative housing Tribunal (CQLR, c. T-15.01 ). [ 23 ] The parties agree that Justice G. Lareau’s judgement in Windsor (Ville de) c. Domtar inc. [7] sets out the applicable principles in granting leave under s. 159 . [ 24 ] The Court summarizes the rules set forth in this decision as well as in other relevant case law. Leave will be granted under

section 159 ARAJ where the questions raised by the applicant are sufficiently serious, controversial or new and present legal issues of general interest [8] . In other words, the function of the appeal is not to correct all errors of law that may be present in a TAQ decision, but rather to promote questions of importance, which is particularly the case when new or controversial questions of law are involved. [ 25 ] To paraphrase Justice Bich in Genest v.

Bélisle [9] , it is insufficient to argue in support of an application for leave to appeal that an error of law vitiates the decision of the TAQ: it must also be established that the error relates to a legal question of general interest, that is to say, one that goes beyond the interests of the parties alone [10] . [ 26 ] That said, where the appeal does not raise a new or controversial question of principle or law, permission may still, even more exceptionally, be granted where there is a denial of justice, i.e., a gross injustice, or where there is a prima facie case made of a breach of procedural fairness or a violation of a principle of natural justice.

However, not every error, even if real, is of such a nature as to create such an injustice. [11] [ 27 ] Finally, whatever the nature of the issue or error raised, the principle of proportionality and the requirements of the sound administration of justice (arts. 9 and 18 C.C.P . ) mean that leave to appeal a TAQ decision will generally be granted only if the appeal contemplated has a reasonable chance of success under the applicable standard of review.

This also means that, although the monetary value of the issue is not necessarily determinative, it is a factor to be considered, which may militate against granting leave to appeal. [ 28 ] The applicant raises the following questions in her application for leave to appeal: 28.1. Did the TAQ commit a manifest error in TAQ-2 by not analyzing the arguments raised by the applicant and concluding that there were no grounds to review TAQ-1? 28.2. Did the TAQ commit a manifest error by using non-representative comparables submitted by the respondent for the actual value? 28.3.

Did the TAQ commit a manifest error by not considering the absence of a free and open market with respect to assessment of the actual value?

28.4. Did the TAQ err in law in applying the presumption of validity to the certificates of alterations? 28.5. Did the TAQ err in law by not determining the actual value of the assessment units? 28.6.

Did the TAQ err in law by recognizing the status of expert of Jean-Philippe Hébert? [ 29 ] The Court will first address the first ground of appeal and then grounds two through six will be addressed together. 2.2 First ground of appeal: Did the TAQ commit a manifest error in TAQ-2 by not analyzing the arguments raised by the applicant and concluding that there were no grounds to review TAQ-1? [ 30 ] The Court underscores that the applicant seeks leave to appeal of TAQ-2 and not TAQ-1. Leave to appeal of TAQ-1 was never sought.

Hence, to determine whether leave to appeal from TAQ-2 should be granted, the Court must evaluate whether the proposed grounds of appeal meet the test for leave set out in

section 159 ARAJ in light of TAQ-2, and not TAQ-1. [12] [ 31 ] As the Court of Québec pointed out in Lubecki , which is a case that bears a striking resemblance with the present case, an application for revision is governed by

section 154 ARAJ whereas an application for leave to appeal is governed by

section 159 . These are two distinct recourses. When an appeal is sought from a TAQ decision dismissing an application for review under

section 154 ARAJ , the grounds of appeal must pertain to whether the TAQ properly applied the framework of

section 154 and not whether there exist grounds of appeal of the initial decision. [13] [ 32 ] As the respondent appropriately submits, this Court must determine whether TAQ-2 properly reviewed TAQ-1.

If it finds an error in TAQ-2, then it must determine whether that error constitutes an issue that is such as to warrant the granting of leave to appeal. [ 33 ] On December 15, 2021, TAQ-1 is rendered. [ 34 ] On January 17, 2022, the applicant filed with the TAQ an application for review of TAQ-1. [14] [ 35 ] TAQ-2 dismissed the applicant’s application for review [15] . [ 36 ] The administrative judge begins his analysis by referring to the Court of Appeal’s decision in Tribunal Administratif du Québec v. Godin where the Court explains the scope of a review under

section 154 ARAJ [16] . [ 37 ] Applying the framework set out in Godin , TAQ-2 dismissed the application for review for the following reasons: [11] Une audience qui découle d’une requête suivant l’

article 154 LJA n’est pas un appel, une seconde chance pour permettre à une

partie de présenter à nouveau son dossier sous des angles différents afin de convaincre un banc du bien-fondé de son recours initial. [12] La simple insatisfaction d’une

partie quant à l’appréciation de la preuve ou des conclusions retenues n’est pas un motif de révision ou de révocation suivant l’

article 154 LJA . [13] Bien que le résumé de la demande donne l’impression qu’un motif de révision ou de révocation est présent, il n’en est rien à la lecture des documents déposés. [14] La

partie requérante critique plutôt le juge administratif quant à son évaluation de la preuve au dossier et des éléments retenus pour rendre sa décision. [15] Le Tribunal constate que les motifs allégués, au soutien du recours en révision ou en révocation, ne répondent pas aux critères énoncés à l’

article 154 de la LJA . [16] En conséquence, le Tribunal conclut à l’irrecevabilité du recours. [ 38 ] The application for review was governed by

section 154 ARAJ : 154. The Tribunal, on an application, may review or revoke any decision it has made (1) where a new fact is discovered which, had it been known in time, could have warranted a different decision; (2) where a party, owing to reasons considered sufficient, could not be heard; (3) where a substantive or procedural defect is of a nature likely to invalidate the decision. In the case described in subparagraph 3, the decision may not be reviewed or revoked by the members having made the decision. 154.

Le Tribunal peut, sur demande, réviser ou révoquer toute décision qu’il a rendue: 1° lorsqu’est découvert un fait nouveau qui, s’il avait été connu en temps utile, aurait pu justifier une décision différente; 2° lorsqu’une

partie n’a pu, pour des raisons jugées suffisantes, se faire entendre; 3° lorsqu’un vice de fond ou de procédure est de nature à invalider la décision. Dans le cas visé au paragraphe 3°, la décision ne peut être révisée ou révoquée par les membres qui l’ont rendue. [ 39 ] The applicant raised a number of grounds in her application for review of TAQ-1. The Court summarizes them as follows: 39.1. TAQ-2 contains substantive and procedural defects, including many shortcomings.

39.2. The administrative judge did not take into consideration all essential arguments, facts, information, and other decision-making information submitted by the applicant, which resulted in an erroneous decision. 39.3. The respondent (City of Montréal) failed to provide adequate evidence of the increase in the assessed value of the lots. 39.4. TAQ-2 rests on unproven and on incorrect data and moreover, the circumstances do not match the conclusions. 39.5. TAQ-2 misapplied the law and did not take into account the applicant’s arguments. 39.6.

TAQ-2 put too much weight on the opinion of the respondent’s appraiser without evaluating whether he was duly qualified. 39.7. TAQ-2 erroneously relies on comparables which it should not have considered because they were discredited. 39.8. TAQ-2 appears to be a model or generic decision and was not specifically written for the facts of this particular case. Moreover, it is not sufficiently reasoned. 39.9. TAQ-2 contains “fundamental” and “decisive” errors of fact and omits the evidence she presented.

These multiple errors of fact are fully described in the 11 page “Revision Letter”. [17] [ 40 ] Given these grounds, it does not appear that the applicant based her application for review on the discovery of a new fact ( s. 154(1) ARAJ ) or because she was not heard ( s. 155(2) ARAJ ). [ 41 ] Rather, and as the administrative judge correctly pointed out, these grounds of review are related to a “substantive or procedural defect” in TAQ-1 ( s. 154(3) ARAJ ). [ 42 ] TAQ-2 considered the applicant’s grounds of review and held that they did not come within the scope of section 154 (3) ARAJ .

Therefore, it dismissed her application. [ 43 ] The applicant argues that TAQ-2 is erroneous in that it does not properly apply the framework of section 154(3) ARAJ . In other words, she argues that the arguments that she raised in her application for review should have led the administrative judge to revoke TAQ-1. She also argues that the reasons for judgement of TAQ-2 are insufficient. [ 44 ] The applicant does not convince the Court that TAQ-2 improperly applied

section 154 of the Act nor that the decision is insufficiently reasoned. For the reasons that follow, the first grounds of appeal does not raise a sufficiently serious, controversial or new question that is of general interest. [ 45 ] The Court of Québec, the Superior Court and the Court of Appeal have addressed the proper scope of the internal review mechanism created by

section 154 ARAJ on numerous occasions. This area of the law is well established and not controversial. [ 46 ] In Godin , the Court of Appeal stated that

section 154 ARAJ was not intended to empower one panel of the TAQ to revoke or review the decision of another panel of the TAQ simply because it takes a different view of the facts, the relevant statutory provisions, or the applicable regulations. [18] The Godin Court added that a second TAQ panel may only intervene where they can identify a fatal error in the impugned earlier decision. It also added that

section 154 does not provide for an appeal to the second panel against findings of law or fact by the first. [ 47 ] Since Godin , the Court of Appeal has addressed the scope of the internal review procedure created by

section 154 ARAJ and other similar legislative provisions on a number of occasions. [ 48 ] In Syndicat des travailleurs(euses) des épiciers unis Metro Richelieu (CSN) v.

Metro Richelieu Inc ., Justice Marie St-Pierre refused to grant leave to appeal from a decision of the Superior Court which granted an application for judicial review of the Commission des relations de travail which itself had reviewed a decision of an earlier panel of the same administrative body. [19] [ 49 ] According to Justice St-Pierre, leave to appeal was not warranted because the appeal did not raise a question of principle, nor a novel or controversial question.

She held this because as she writes, the Court of Appeal has ruled on numerous occasions on the meaning of what constitutes a “substantive defect” and the guidelines for applying this concept are clear and well known. This reasoning applies to the applicant’s appeal. [ 50 ] In 2020, the Court of Appeal once again had the opportunity to address the scope of

section 154 ARAJ . In Ministère de l’emploi et de la solidarité sociale v. R.C ., it summarized the scope of this provision as follows : [20] La jurisprudence de la Cour portant sur la question du vice de fond de nature à invalider une décision est sans équivoque. Le vice de fond connote l’idée d’une erreur grave, évidente et déterminante. Une divergence d’opinions sur l’interprétation d’une disposition législative ne suffit pas à invalider une décision.

Le fait pour le premier décideur d’opter pour une interprétation minoritaire ne correspond pas à un vice de fond lorsque cette interprétation est tout aussi compatible avec le texte de lo i . La requête en révision interne ne constitue « pas […] un outil destiné à assurer la cohérence des décisions administratives ». [20] [References omitted]

[ 51 ] In 2021, the Court of Appeal twice addressed the parameters of what constitutes a “substantive defect”/“ vice de fond ” in statutes that provide for an internal review mechanism that is identical to the one found in

section 154 ARAJ , namely in Trentway-Wagar Inc . v. Cormier [21] and in Corbi v. Ville de Montréal . [22] [ 52 ] Based on these precedents, the remedy created by

section 154 ARAJ is neither an appeal, nor (for obvious constitutional reasons) the equivalent of an application for judicial review. This internal review mechanism calls for a higher standard of intervention, the review function being limited to the correction of substantive or procedural defects which are of a nature to invalidate the initial decision. [ 53 ] Moreover, the case law strictly defines what constitutes a “defect”, and in particular a “substantive defect”.

It is one which is tantamount to a serious and fundamental defect, a fatal error, an unsustainable finding of fact or law, an ultra vires decision. It is an error so egregious that it invalidates the decision or makes it a decision that, on its face, is indefensible, an error, in short, whose "seriousness, obviousness and decisive character" is obvious. This is type of error that the TAQ has the power to review and correct under section 154(3) ARAJ . [ 54 ] In short, the framework of

section 154 ARAJ is well established. [ 55 ] The applicant does not convince the Court that TAQ-2 contains an error in law when it applied

section 154 and dismissed her application for review. The TAQ-2 panel applied a criteria that is clear and well know to the arguments raised by the applicant, and properly concluded that they were not substantive or procedural defects of a nature likely to invalidate TAQ-1. [ 56 ] The Court agrees with TAQ-2 in that the grounds raised by the applicant in her application for review do not meet the strict test for a substantive or procedural defect. Rather, these grounds tend to show that she intended to raise anew before the TAQ-2 panel the same arguments that she raised before the TAQ-1 panel.

Much of her arguments pertain to questions of fact, or at best, mixed questions of fact and law. The internal review mechanism is not an appeal process based on the same facts, nor the proper venue to raise an error of

interpretation of the law [23] . [ 57 ] Moreover, even if TAQ-2 contains an error in its application of

section 154, and the Court does not believe that it does, the first grounds of appeal does not raise a question of general interest which the Court of Québec should decide. Borrowing the words of Justice M. St-Pierre in 2017 in Metro Richelieu , the scope of

section 154 is clear and well known and there is no need for the Court of Québec to revisit this issue anew in the circumstances of this case as the issue raised by the intended appeal does not go beyond the interest of the parties alone. There is nothing novel or controversial in TAQ-2’s application of

section 154 ARAJ . [ 58 ] As for the argument that TAQ-2 is not sufficiently reasoned, this question similarly does not warrant that leave be granted. [ 59 ] TAQ-2 more than meets the test for sufficiency of reasons set forth by the appellate courts [24] . The reasons provided in TAQ-2 adequately address the issue in dispute – whether the arguments raised by the applicant fall within section 154(3) ARAJ .

It affords the parties sufficient information to allow them to understand why it decided to dismiss the application for review. [ 60 ] Given that TAQ-2 held that the numerous arguments raised by the applicant as a whole did not fall within the scope of section 154(3), it was proper for TAQ-2 not to address in its reasons each and every argument she raised. [ 61 ] Accordingly, this first ground of appeal is not one which ought to be submitted to the Court of Québec. 2.3 Second through sixth grounds of appeal [ 62 ] The applicant raises the following grounds: 62.1.

TAQ-1 used comparables that are not representative of the actual value; 62.2. TAQ-1 did not consider the absence of a free and open market; 62.3. TAQ-1 contains an error of law in applying the presumption of validity to the certificates of alterations; 62.4. TAQ-1 did not determine the actual value of the assessment units; and 62.5. TAQ-1 erred in recognizing the status of expert jean-Philippe Hébert. [25] [ 63 ] Grounds of appeal 2 through 6 pertain expressly with the applicant’s dissatisfaction of TAQ-1.

These are grounds of appeal which do not concern TAQ-2 but rather TAQ-1. [ 64 ] Yet, the applicant never sought leave to appeal from TAQ-1 and the Court is only seized with an application for leave to appeal of TAQ-2. [ 65 ] The applicant cannot through an appeal of TAQ-2 raise grounds of appeal which properly should and could have been raised in an application for leave to appeal of TAQ-1. In other words, she cannot do indirectly what she failed to do directly. [ 66 ] Moreover, TAQ-2 did not err when it did not consider these grounds since an administrative review under

section 154 ARAJ is not an appeal of the decision on the merits. [ 67 ] Grounds 2 through 6 pertain only to TAQ-1 and are not relevant for the purposes of assessing whether leave should be granted under

section 159 ARAJ from TAQ-2. CONCLUSION

[ 68 ] TAQ-2 correctly applies the jurisprudence established by the Court of Appeal as to the application of

section 154 ARAJ . The arguments raised by the applicant show that the appeal has no chance of success. The application for leave to appeal does not raise any issue that ought to be submitted to the Court of Quebec. [ 69 ] The appellant fails to raise any serious, controversial, novel or general issue. TAQ-2 is reasoned, intelligible and in conformity with the jurisprudence rendered in matters of review under

section 154 ARAJ . FOR THESE REASONS, THE COURT: [ 70 ] DISMISSES the application for leave to appeal. __________________________________ ENRICO FORLINI, J.C.Q. Elena Krivosheeva Self-represented Me Hugo Pépin M. Pierre-Luc Bisaillon, articling student Gagnier Guay Biron Respondent’s lawyers Date of hearing: June 1, 2022.