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.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.