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T-1420-84
Ville de Cap-Rouge (Plaintiff) v.
Minister of Communications of Canada (Defend- ant)
and
Canadian Radio-television and Telecommunica tions Commission and Télémédia Communications Ltée (Mis -en-cause)
Trial Division, Denault J.—Quebec City, Novem- ber 21; Ottawa, December 6, 1984.
Practice Parties Standing Municipality seeking to set aside decision authorizing installation of antennas Whether antennas constituting nuisance Plaintiff claiming to represent ratepayers Defendant moving to strike plead- ings for lack of standing Federal Court Rules silent as to interest R. 5 authorizing reference to Code of Civil Proce dure Party required to have authority and sufficient inter est to institute proceedings Neither provincial statute nor rules of civil procedure conferring on municipality authority to plead on behalf of someone else Sufficient interest where party deriving pecuniary and/or psychological benefit Mu nicipality not claiming separate, personal right Restrictive interpretation of sufficient interest adopted Motion allowed Federal Court Rules, C.R.C., c. 663, RR. 5, 419(1), 1708 Quebec Code of Civil Procedure, art. 55, 59 Cities and Towns Act, R.S.Q. 1977, c. C-19, ss. 28(1)(5), 415.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Association des Propriétaires des Jardins Taché Inc. et al. v. Entreprises Dasken Inc. et al., [ 1974] S.C.R. 2.
REFERRED TO:
Corporation du Village de la Malbaie v. Warren (1923), 36 B.R. 70 (Que.).
COUNSEL:
Denis Gingras for plaintiff.
James Mabbutt for defendant. Wilson Atkinson for mis -en-cause.
SOLICITORS:
Gingras & Dawson, Quebec City, for plain tiff.
Deputy Attorney General of Canada for defendant.
Clarkson, Tétrault, Montreal, for mis -en- cause.
The following is the English version of the reasons for order rendered by
DENAULT J.: The defendant moved to have the plaintiff's action dismissed on the ground that it discloses no reasonable cause of action, pursuant to Rule 419(1) of the Federal Court Rules [C.R.C., c. 663].
By its action the plaintiff is seeking to have a decision by the defendant to approve a technical construction and operating certificate for the antennas of the mis -en-cause Télémédia set aside. It is also asking the Minister of Communications to enforce his Department's rules of procedure and force the mis -en-cause to comply with them. Final ly, it is seeking an order enjoining the defendant to refuse final approval of the certificate and to order that the mis -en-cause's antennas in St-Augustin be dismantled.
The defendant moved to have the pleadings struck out on the basis that the plaintiff had no interest in the matter and that the remedy against the defendant was unfounded.
The plaintiff maintained that [TRANSLATION] "63.5 per cent of the homes in Cap-Rouge are affected by interference from the 50,000-watt broadcasting by the mis -en-cause Télémédia Com munications Ltée" (paragraph 22) and maintained that [TRANSLATION] "AM-FM receivers, tele phones, stereos, computers, television sets, internal communication systems and loud speaker systems" (paragraph 24) were affected by the installation of the said antennas. Consequently, [TRANSLATION] "the plaintiff, on behalf of its ratepayers, is seek ing an end to the major disruptions resulting from the upholding of an illegal decision" (paragraph 21). It also stated that this situation could not continue and asked [TRANSLATION] "that there be an end to this pollution which is interfering with a quality of life which its ratepayers are entitled to insist on" (paragraph 26).
In short the plaintiff is thus claiming to repre sent its ratepayers and it submitted that it had a sufficient interest to act on their behalf because
what they were complaining of constituted a nui sance which affected them. Furthermore, it had already made representations to the Minister of Communications on their behalf and it argued that this fact gave it the necessary interest to represent them.
Sections 1708 et seq. of the Federal Court Rules do not say anything about the interest required to bring proceedings in this Court. How ever, Rule 5 allows reference to be made to the Quebec Code of Civil Procedure in the present case. Article 55 C.C.P. provides as follows:
55. Whoever brings an action at law, whether for the enforcement of a right which is not recognized or is jeopardized or denied, or otherwise to obtain a pronouncement upon the existence of a legal situation, must have a sufficient interest therein.
In order to institute judicial proceedings the plaintiff must have the authority to do so and a sufficient interest, in other words, it must find a benefit and utility in them which will have the effect of altering or improving its legal situation.
A municipality is a creature of statute and has only those powers conferred on it by the Cities and Towns Act, R.S.Q. 1977, c. C-19. These powers are extensive and include among other things the authority to make by-laws concerning public nui sance (section 415, C.T.A.). It may also sue and be sued (section 28(1)(5), C.T.A.). However, a municipality does not have the authority to plead on behalf of someone else. On the contrary, article 59 C.C.P. provides that "A person cannot use the name of another to plead, except the Crown through authorized representatives." It is true that there are certain exceptions in the case of minors and interdicted persons, inter alia, but the munic ipal authority is not to be found in these excep tions. A municipality can therefore not plead on behalf of another person since a person who pleads for someone else has no interest when he invokes a right that is not his. Only the person having that right can act if his right is denied or disputed. [TRANSLATION] "It is not sufficient, to bring an action, for a right to exist; there must also be an injury to that right, which produces the interest, and the latter alone justifies the bringing of an action".'
' Corporation du Village de la Malbaie v. Warren (1923), 36 B.R. 70 (Que.), at p. 72.
The plaintiff will have a sufficient interest to institute judicial proceedings if it can derive a pecuniary and/or psychological benefit from them. His interest must also be personal except in the cases provided for by law, such as curators, class actions, and so on. It also goes without saying that a municipality may exercise its personal remedies to protect its property, recover its debts, protect its by-laws, and so on.
In the case at bar, the Municipality did not claim any separate, personal right of its own such as would justify the remedy sought. As stated above, a municipality can act only within the framework of the powers conferred on it by the powers that be. In this regard I do not see how it can take the place of its ratepayers in exercising such a remedy when the Supreme Court has inter preted the notion of sufficient interest very restric tively, refusing to allow an association of property owners to sue on behalf of the latter in Association des Propriétaires des Jardins Taché Inc. et al. v. Entreprises Dasken Inc. et al., [1974] S.C.R. 2, where Pigeon J. stated the following, at page 10:
It should be said first that the decision of the Court of Appeal, as it applies to the Association, is well founded. This organization is not entitled to exercise the rights of its mem bers. It does not claim any other capacity than that conferred by its incorporation under Part Ill of the Companies Act. It does not describe itself as a property owner, alleging only that its members are property owners. The only decision on this point to which we were referred at the hearing is La Fraternité des Policiers v. Cité de Montréal. That case dealt with a professional syndicate governed, not by the Companies Act, but by another statute which contains a provision giving it special powers to exercise the rights of its members with respect to certain acts prejudicial to the collective interest. Nothing of this sort is to be found in the statute governing the Association.
In view of my finding that the City does not have a sufficient interest to exercise the remedy sought, I shall not elaborate on the second argu ment raised by the defendant in his motion, namely that the municipality is not entitled to the relief sought.
The defendant's motion is allowed and the plain tiff's action is dismissed with costs.
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