19781
COMMENTS – COMMENTAIRES
John E. L. Duquet v.
La ville de Sainte-Agathe-des-Monts
I. The Background
While the common law provinces have long recognized the utility
and the availability of the declaratory action,’ Quebec has stead-
fastly refused to allow its judges to express opinions unless, at
least formally, a more “practical” problem was before them. As late
as 1964, Taschereau J. stated:
Dans la province de Qu6bec 1’action ddclaratoire n’existe pas. Ses tri-
bunaux ne donnent pas de consultations 16gales; ils jugent les litiges.
Les questions acad6miques et thdoriques oit aucun lis n’existe leur ont
toujours 6td 6trangires. La seule crainte que peut avoir un citoyen
qu’un jour une action possible peut 6tre institude contre lui ne justifie
pas per se un recours en justice. La porte des tribunaux n’est pas ou-
verte b quiconque n’a pas d’int6r&t n6 et actuel dans un litige.2
To remedy this rigidity, the Legislature introduced into the 1965
Code of Civil Procedure, articles 453 and following,3 which were
designed to provide quick solutions
to very clear-cut problems
and article 462 which opened the door to the type of declaratory
action in existence in other provinces. It could therefore have been
argued in 1966 that a fairly broad spectrum of recourses had been
created, and that, subject to the limitations contained in the Code,
a declaration was more available to Quebecers than to those living
in common law jurisdictions. 4 However, glosses tending to limit the
use of these recourses began’ almost at once. While the courts may
not have been adverse to the principle of declaratory actions in
general, they resisted fiercely the pressure to give semi-abstract
opinions on law which would then bind the parties. The courts
found it difficult to accept the legislators’ intention to create a
special channel enabling plaintiffs, at their option, to circumvent
the long delays and cumbersome procedures of ordinary actions.
‘E.g., Dyson v. A.G. [1911] 1 K.B. 410.
2 Saumer v. A.G. (Que.) [19641 S.C.R. 252.
3 Art.453, C.C.P. states:
“Any person who has an interest in having determined immediately, for
the solution of a genuine problem, either his status or any right, power
or obligation which he may have under a contract, will or any other
written instrument, statute, order in council, or resolution or by-law of
a municipal corporation, may, by motion to the court, ask for a de-
claratory judgment in that regard.”
4 See de Smith, Judicial Review of Administrative Action 3rd ed. (1973),
425 for what the effect of a declaration may be.
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The result was that, save for a few established areas (such as
wills) 8 declaratory judgments on motion became extremely diffi-
cult to obtain.
Perhaps the clearest judgment expressing the view prevailing
until 1976 was the decision of Mr Justice Rothman in Malartic
Hygrade Gold Mine (Quebec) Ltd v. Quebec Securities Commission:
It is now well settled that the provisions in the Code of Procedure
relating to declaratory judgment constitute an exceptional remedy, to
be interpreted strictly, and to be limited to
those specific cases,
contemplated in article 453 C.P…..
It is equally well settled that
article 453 C.P. contemplates a preventative other than a curative
procedure. Quite clearly, it is not to be used to assert disputed or
litigious rights which should properly be tried by ordinary action or
. Finally, the de-
other procedure contemplated under the Code
claratory judgment procedure cannot be used to require decision from
the Court on matters outside of its jurisdiction.O
It would be tempting to analyze at length (and with numerous
examples) each of these elements. The second rule, in particular,
provides fuel for truly casuistic distinctions and arguments. Fortun-
ately, such analysis may be found in an article by Sarna whose
conclusions dn relation to the preventive-curative dichotomy illus-
trate both the difficulties and the practical effects of the dis-
tinction.
…
The distinction between a preventive and curative measure is at best
only theoretically [possible]
… . [I]t is contended that the distinction
is a mere restatement of the view that the declaratory motion is not
a vehicle for shortcutting the delays of direct actions where certain
demands, in the discretion of the court, properly belong.7
It is clear that the courts thought it inconceivable that the
legislators would want to create a new procedure, parallel to the
old ones, giving certain plaintiffs an option between a “quick”
and a “slow” judicial process. Therefore, they attempted to restrict
the new procedure to inchoate disputes which could not yet be
litigated in the ordinary way. But since courts are not there to give
gratuitous opinions and since the Code itself demanded the pre-
sence of a Teal dispute, one could not ask for solutions to theor-
etical legal problems. Thus the declaratory motion was open only
in those delicately calibrated situations in which a dispute had
arisen but was not yet ready for ordinary litigation. The defining
of such situations produced z’efinements. of thought which would
ISee, e.g., Marina Dunning v. The Royal Trust Co. [1975] C.S. 896.
6 [1974] C.S. 398, 399.
7 Sarna, The Scope and Application of the Declaratory Judgment on Motion
(1973) 33 R. du B. 493, 497.
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COMMENTS – COMMENTAIRES
have pleased scholastic philosophers and the number of potential
declaratory judgments was drastically reduced by this new dogma.
While it could not be said that articles 453 and following fell into
desuetude during the period prior to the Duquet decision, it is
clear that these articles were not fully exploited.
This state of affairs provoked much criticism. While no one
wished to give certain parties ways of evading proper procedural
delays, it was difficult to see why a problem that could be form-
ulated clearly enough to be settled without the delays and dis-
ruptions which invariably attend a law suit should not be so
settled. Secondly, if a point of law was truly in doubt, it was surely
advisable to solve it clearly, without creating the distortions that
issues of fact frequently create in plenary hearings. It is difficult
to disagree with the conclusions of Professor Claude Ferron:
I1 y aurait peut-8tre lieu de revaloriser cette procedure et d’y recourir
plus souvent en cas de silence, d’obscurit6 ou d’insuffisance de la loi
ou de tout dcrit vis6 pour l’article 453 C.p.8
While Professor Ferron probably envisaged a legislative review,
the Supreme Court of Canada was able to accomplish everything
he and other “activists” hoped for in its recent judgment of John
E.L. Duquet v. La ville de Sainte-Agathe-des-MontsY
II. The Judgment
John Duquet owned a house in the resort town of Ste-Agathe-
des-Monts. The house was situated in an outlying part of the town,
where no normal municipal services were available. Nevertheless,
the town decided to apply its by-law concerning the collection of
water tax from property owners to Mr Duquet. Duquet’s reply was
to serve a motion for declaratory judgment to the effect that the
town had no right to tax -him without providing the benefits of
the tax.
At first instance,”0 the Superior Court decided that the proper
recourse was an action to annul the by-law, holding that a declar-
ation could not lie in a “curative” matter and that therefore he had
chosen the wrong procedure. The Court of Appeal confirmed,
adding the following:
8 Ferron, Le jugement diclaratoire en droit qugbdcois (1973) 33 R. du B.
378, 385. See also the views of Dussault in Traitg de Droit Administratif
Canadien et Qudbdcois (1974), T.II, 1030.
9 [1977] 2 S.C.R. 1132.
10 C.S. Terrebonne no 67203, Mar.7, 1974 (Legault 3.).
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Dpasser les limites rigoureuses, fixdes par l’article 453 n’aurait qu’un
‘6conomie de notre Code de Procddure civil en
effet, celui de ddtruire
cr6ant un second syst~me d’institution et d’audition des litiges …. 11
Undaunted, Duquet pressed his suit to the Supreme Court of Can-
ada, where his persistence was finally rewarded:
Avec respect, je dois dire que la decision de la Cour d’appel fait rien
moins que rayer du Code l’art.453. En effet, quand aura-t-on une “dif-
ficult6 rdelle” qui ne constitue pas un “litige” …
.12
This first blow at the academic preventive-curative distinction
was strengthened by the following comment about article 453:
“I1 est 6vident que l’on a voulu rendre la requite largement applica-
ble.”‘ 3
Finally, Mr Justice Pigeon enumerated the following fundamental
rules which can be viewed as a fairly exhaustive summing up:
1) [Pour d6cider si le cas peut faire l’objet d’une requ6te en jugement
ddclaratoire, il n’y a pas lieu de recherche si la demande est prdventive
ou curative, on doit s’arr6ter seulement h considdrer si elle entre dans
le cadre de l’art.453;
2)
la distinction n’dtant pas d’ordre public, celui qui veut se plaindre
de ce qu’on aurait dfi procdder par action doit le faire d s la prdser*-
tation de la requite et il faut le consid6rer comme y ayant renoncd s’il
conteste par 6crit.14
It is true that Pigeon J. did not intend ,to deprive the Court of all
discretion:
“[R]ien n’emp~che le juge, s’il croit que lon abuse de cette procddure,
d’ordonner que l’affaire soit instruite comme s’il s’agissait d’une ac-
tion.”‘5
Despite this, it
relaxation of impediments to the use of article 453.16
is dear that Mr Justice Pigeon intended a radical
III. The Conclusions
It is obvious that the elimination of the preventive-curative
distinction will render the declaration more accessible to litigants
in the way in which Sarna and Ferron may have desired. 17 We are
11 [1975] C.A. 764, 765.
12 Supra, note 9, 1138.
13 Ibid., 1141.
14 Ibid., 1142.
15 Ibid.
‘6For reasons immaterial to the present essay the judgment concluded
that, on the merits, Duquet and not the municipality was correct in in-
terpreting the Cities and Towns Act, R.S.Q. 1964, c.193, and therefore the
declaration was made in favour of Duquet; supra, note 9, 1146.
17 Supra, notes 7 and 8.
19781
COMMENTS – COMMENTAIRES
likely to see new vigour in the proceaure and many unnecessary
delays and uncertainties will now, be avoided. However, a note of
caution should be sounded. Even if the view of the courts before
Duquet was logically untenable, it was prompted by genuine fears
about abuse of legal process. If an injustice is not to be committed
by too strong a swing of the pendulum, a number of limitations
will have to be kept in mind. Mr Justice Pigeon mentioned one:
[Ill ne faut pas oublier que m~me interpr6t6 largement, l’art.453 ne
permet pas de demander une condamnation h payer une somme d’ar-
gent.”s8
-Then, as we have already seen, he went on to mention judicial
discretion as a check on abuse.
The nature of this judicial discretion is not one which is easy
to formulate. In the case of R. v. Wray,19 the Supreme Court decided
that the discretion which judges have to exclude prejudicial eviden-
ce is a very narrow one. On the other hand, judges have been given
very great discretion in the assessing of witnesses and the making
of findings of the law, and the principle of restraint in the courts
of appeal is too well establdshed to require authority.
It
is suggested that in this case, the discretion would be a
narrow one, similar to the one in R. v. Wray. It would probably be
significant only in preventing trivial or totally improper apulica-
tions and this would certainly seem to be the intention of Mr
Justice Pigeon. The judicial discretion should, therefore, be viewed
as an important but narrow restriction on the use of article 453 and
following. On the other hand, we must remember that only the
preventive-curative distinction has been eliminated, and not the
other limitations on declaratory actions. Disputes must satisfy all
the exigencies of article 453 in order to fall under it.
In his book on Canadian administrative law, Reid brought up
another restriction: “A privative clause may effectively bar an action
for a. declaration.”2 0 Although Reid did not address himself specific-
ally to the problems of Quebec, the fact that administrative law re-
courses are usually more difficult to obtain here than elsewhere
would indicate that the statement would apply. There is no reason
18 Supra, note 9, 1142.
19 (1970) 11 D.L.R. (3d) 673 (S.C.C.).
20 Reid, Administrative Law and Practice (1971), 405. This has recently
been confirmed in Pierre Pelletier v. Jean-Marie Trudel et at (C.S.M. no
500-05-018-536-761), a case in which the Hon. Mr Justice Lysyk refused to
issue a declaration regarding Quebec’s Election Act, R.S.Q.
1964, c.7,
apparently because of a privative clause. The judgment was unmotivated.
But see Allen, Law and Order 3rd ed. (1965), 230 for the opposite view.
McGILL LAW JOURNAL
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to think that ‘the Duquet case has in any way changed this and that
article 453 can be used where the court has otherwise no jurisdiction.
This provides a means for the legislators to avoid a proliferation
of declaratory actions where such proliferation would seem un-
desirable. Given this very powerful weapon, there is no reason to
think that the Duquet case will weaken unduly the position of the
Legislature in our system of justice.
Another point left open is whether article 453 and following
can be used to obtain declarations that certain statutes are ultra
vires. That a declaratory action under article 462 of the Code of
Civil Procedure may be used for this purpose is now clear21 –
but
can the motion make this a virtually immediate remedy? As we
have seen, Mr Justice Pigeon attached great importance to the
wording of article 453 *22 If literal interpretation is the rule, then
invalidation of a statute (or contract) may lie outside the scope
of the article, which only speaks of “rights, powers or obligations
taking the instrument’s
under a contract, etc …
validity for granted. This is clearly a matter which requires ju-
dicial clarification.
seemingly
“,
The Duquet case itself is an example of a declaration that a
regulation is ultra vires. That, however, could be construed as a
determination of Mr Duquet’s rights under the Cities and Towns
Act , 3 and not as a declaration of nullity of an independent statute
or contract. In short, it is not clear whether the effect of the
McNeil case2a in which a declaratory action under article 462 of the
Code of Procedure could be used to declare certain statutes ultra vires
may be cumulated with .the effect of the Duquet case.
The precise application of the Duquet case has yet to be worked
out by our courts. Cases which followed Duquet have not establish.
ed a definite “activist” or conservative trend.
Zenith Radio Corporation of Canada Ltd et L’Ordre des Audio-
the disap-
prothesistes du Qudbec quotes Duquet and accepts
pearance of the preventive-curative distinction.24 On the other hand,
21See Thorson v. A.G. (Canada) [1975] 1 S.C.R. 138, 43 D.L.R. (3d) I
(S.C.C.).
they
and McNeil v. Nova Scotia Board of Censors (1975) 5 N.R. 43
These cases did not originate in Quebec, but one cannot see why
would not apply.
22Supra, note 9, 1142.
23 R.S.Q. 1964, c.193.
23a Supra, note 21.
24 [1976] C.S. 1758, 1759.
19781
COMMENTS – COMMENTAIRES
Charette v. Vincent,2 although it grudgingly accepts the same
change, is more restrictive in tone? 6
The Court of Appeal in Voghel v. P.-G. (Qud.)Y. faced the ci-
ticisms levelled at it by Mr Justice Pigeon in Duquet. Mr Justice
Rinfret quoted at length the most severe of the remarks in the
Supreme Court. In no uncertain terms, he defended the old line of
jurisprudence?” He concluded:
Je me dois pourtant d’accepter cette d6cision du Tribunal sup6rieur;
mais j’avoue le faire avec r6ticence vu la profonde perturbation qu’elle
va sftrement causer dans radministration de la justice.2 9
Ironically, Mr Justice Rinfret proceeded to express the hope
that the legislator would intervene to restore the now discarded
limitations on the use of article 453. It is probably safe to assume
that although the Court of Appeal has bowed to the Supreme Court,
it will give as restrictive a reading to Duquet as it can reasonably
bear.
The case which gives grounds for the most optimism is North
America Business Equipment Ltd v. Tele-Star Communications Inc..”
In this judgment, Vallerand J. denied the right to invoke the or-
dinary dilatory and declinatory exceptions
to motions brought
under article 453. The reason was that the article was intended to
provide quick solutions;, cumbersome procedures which would
detract from this purpose would defeat the spirit of the Code.
It is to be hoped that other judges will follow this example and
re-examine article 453 in the light of the Supreme Court’s decision.
For a number of years, it has been clear that article 453 was
failing to fulfif its purpose. It is gratifying to see that the Supreme
Court is trying to rectify matters without recourse to legislation.
Julius H. Grey*
26 [1976] C.S. 1760.
2 6It was held that the S.C.C. decision in Duquet as to the use of art.453
as a curative measure did not enable the Court to modify the words of a
document so as to change their sense; the purpose of art.453 was seen to
enable an applicant to have confusing or ambiguous terms clarified by
way of declaration by the Court. The ratio decidendi (i.e., the fact that
courts cannot modify the instruments vhich they interpret under art.453)
is unimpeachable.
27 [1977] CA. 197.
28 Ibid., 199. He cited, inter alia, Bellerose v. Bellerose [1969] C.S. 121;
Roy-Terreau v. Chalifour [1969] C.S. 214; Fefferman v. Bentley’s Cycles and
Sports Ltd [1969] B.R. 806; Lescale Investments Ltd v. Ville de Montrdal
[1972] C.A. 498; and Laflamme v. Drouin [1973] C.A. 707.
29 Supra, note 27, 201.
30C.S.M. no 500-05-021-699-776, Jan. 19, 1978 (VallerandJ.).
* Faculty of Law, McGill University.
