Date: 20041022
Docket: T-795-04
Citation: 2004 FC 1476
BETWEEN:
CITY OF MONTRÉAL,
legal person established in the
public interest, duly established
under its Charter, having its place
of business at the Hôtel de Ville,
275, rue Notre-Dame Est,
in the city of Montréal,
province of Quebec H2Y 1C6
Applicant
and
MONTRÉAL PORT AUTHORITY,
legal person established in the
public interest, established pursuant to
the Canada Marine Act (S.C. 1998, c. 10),
having a place of business at 1, Cité du Havre,
Édifice du Port de Montréal, in the city of Montréal,
province of Quebec H3C 3R5
Respondent
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY:
[1] The Court has before it a motion by the respondent Montréal Port Authority (MPA) asking it to strike the application for judicial review filed by the city of Montréal.
Background
[2] When enacting the Payments in Lieu of Taxation Act, R.S.C. 1985, c. M-13 (PLTA), the federal Parliament provided for financial compensation "in lieu of" tax assessments so that certain decentralized federal agencies such as the MPA would be the subject of taxation "in lieu of" municipal taxes.
[3] The city of Montréal's application for judicial review in the case at bar concerns the payment made by the MPA pursuant to the PLTA in lieu of taxes for the 2004 city of Montréal financial year.
[4] The city of Montréal is not satisfied with the amount so paid. In the city's view, the MPA should pay the sum of $3,177,045.08. However, it appeared that the MPA had deducted from this payment a total of $1,985,245.66. In the submission of the city of Montréal, the latter amount results from the fact that, first, the MPA considered that no payment had to be made on certain property, namely wharves, jetties and reservoirs, and second, that the MPA applied a rate of tax per $100 assessed which, in the view of the city, is not the legally applicable rate.
[5] In its application for judicial review, the city of Montréal accordingly asked essentially for an order declaring to be illegal the adjustments made by the MPA to the payment which it made to the city of Montréal for 2004.
Analysis
[6] It appears to the Court that, though it was not clear at the outset that the MPA's motion to strike was submitted in this connection, it falls under the inherent jurisdiction of this Court as applied by Strayer J. in Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al. (1994), 176 N.R. 48, at pages 54-5 (Pharmacia).
[7] In Pharmacia, Strayer J. held that a motion to strike in a judicial review proceeding could only be allowed in exceptional cases. At pages 54-5, the Court said the following:
This is not to say that there is no jurisdiction in this Court either inherent or through Rule 5 by analogy to other Rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. (See e.g. Cyanamid Agricultural de Puerto Rico Inc. v. Commissioner of Patents (1983), 74 C.P.R. (2d) 133 (F.C.T.D.); and the discussion in Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al., [1994] 1 F.C. 102; 64 F.T.R. 127, at 120-121 F.C. (T.D.)). Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegation in the notice of motion.
(Emphasis added.)
[8] This is the same reasoning applied by Nadon J., as he then was, in a judgment of August 13, 1996 (Tom Pac Inc. v. Kem-A-Trix (Lubricants) Inc., case T-1238-96, at page 5).
[9] Any motion to strike in the context of an application for judicial review must be exceptional in order to promote the primary purposes of such an application, namely that it be heard on the merits as quickly as possible.
[10] As Strayer J. observed in Pharmacia:
...[T]he focus in judicial review is on moving the application along to the hearing stage as quickly as possible. This ensures that objections to the originating notice can be dealt with promptly in the context of consideration of the merits of the case.
(See also Merck Frosst Canada Inc. et al. v. Minister of National Health and Welfare et al. (1994), 58 C.P.R. (3d) 245, at page 248, and Glaxo Wellcome Inc. et al. v. Minister of National Health and Welfare et al., an unreported judgment of this Court on September 6, 1996, case T-793-96.)
[11] In the case at bar, I do not think that the points raised by the MPA in its motion record are so plain and obvious that the Court should intervene at this stage in the application for judicial review.
[12] In its motion as submitted to the Court, the MPA argued first that the city of Montréal's application for judicial review did not raise one of the dynamics contemplated by subsections 18.1(3) and (4) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended (the FCA).
[13] I do not agree.
[14] Prima facie, the city of Montréal's application for judicial review maintains that the MPA's payment - a payment which for the purposes of paragraph 18.1(3)(b) of the FCA is an act of a federal board, commission or other tribunal - was made contrary to the PLTA, which is at least a ground for intervention by the Court under paragraph 18.1(4)(f) of the FCA.
[15] At the very least, therefore, it is far from plain and obvious that the MPA is right on this first point. The Court thus clearly cannot intervene at this stage on this point and strike the city of Montréal's application for judicial review.
[16] The second point raised by the MPA in its motion was that the city of Montréal should first have applied to the advisory panel mentioned in section 11.1 of the PLTA.
[17] It appears that the mandate of this advisory panel is to give advice on federal property in the event that a taxing authority disagrees with the property value, property dimension, or effective rate applicable to any federal property or claims that a payment should be supplemented.
[18] According to the MPA, this advisory panel is an adequate alternative solution to resolve the dispute between the parties, especially as the city of Montréal has in the past filed a motion with the said panel seeking to have payments made by the MPA revised for the 1993 and 1999 to 2003 fiscal years.
[19] Here again, I am not satisfied that it is plain and obvious that the advisory panel is an adequate alternative remedy.
[20] Even admitting the MPA's view that the city of Montréal can equally apply to the advisory panel, the fact remains that the panel's reply would be addressed to the MPA, not the city of Montréal. Further, and more fundamentally, the reply would come to the MPA in the form of advice, and so would have no enforceable effect. Moreover, it is not at all clear that the panel is empowered to give its advice regarding the entry on the city of Montréal roll of MPA property, a roll which according to the city of Montréal possibly comes under the Tribunal administratif du Québec, which would be the authorized tribunal under the Act respecting Municipal Taxation, R.S.Q., c. F-2.1, to challenge the correctness, existence or absence of an entry on the Real Estate Assessment Roll.
[21] Finally, the dynamic which led the city of Montréal to approach the advisory panel in past years appears to have resulted, so far as the Court could understand counsel's arguments, from a special set of circumstances not essentially the same as that applicable in 2004. The value of going to the panel is accordingly questionable. In this regard, it is worth noting that the MPA also did not lay the dispute with the city of Montréal before the panel.
[22] In view of these factors, I cannot say at this stage that the advisory panel is clearly and unquestionably an adequate alternative remedy (see Froom v. Canada (Minister of Justice), 2003 FC 1299, page 17, and Violette v. New Brunswick Dental Society, [2004] NBCA 1, at 3). This conclusion of course will not be binding on the judge of the merits, who with a different burden of proof may arrive at some other conclusion on this point.
[23] For all the foregoing reasons, this motion by the MPA to strike the application for judicial review filed by the city of Montréal will be dismissed: costs in the cause.
[24] An order will be made accordingly.
|
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Richard Morneau
Prothonotary |
Montréal, Quebec
October 22, 2004
Certified true translation
Jacques Deschênes, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-795-04
STYLE OF CAUSE: CITY OF MONTRÉAL
Applicant
and
MONTRÉAL PORT AUTHORITY
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 19, 2004
REASONS FOR ORDER BY: Richard Morneau, Prothonotary
DATED: October 22, 2004
APPEARANCES:
Luc Lamarre FOR THE APPLICANT
Sébastien Caron
Gilles Fafard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Brunet, Lamarre FOR THE APPLICANT
de Grandpré, Chait FOR THE RESPONDENT