Critics say individual challenge to by-laws would be too onerous

Critics say individual challenge to by-laws would be too onerous

Full story: http://www.lawyersweekly.ca/index.php?section=article&volume=29&number=23&article=1

By Luis Millan
Montreal


A deeply-divided Supreme Court of Canada recently held that a class action is not an appropriate vehicle to challenge the validity of a municipal by-law in a ruling that may have a national impact beyond the Quebec class action regime with which the decision dealt.

In narrowly upholding a decision of the Quebec Court of Appeal by a five-to-four margin, some legal observers now wonder whether the ruling, Marcotte v. Longueuil (City), has curbed access to justice through class action by seemingly holding, among other reasons, that class actions are inappropriate for matters where summary disposition is appropriate.

“It’s almost an aside, but a very important one, when the SCC says that where matters should be dealt with in a summary fashion, class actions are inappropriate,” observed James Morton, past president of the Ontario Bar Association and the head of the litigation group for Steinberg Morton Hope & Israel LLP. “And if that is the case, then a whole host of matters which otherwise might fall under class actions may be excluded. The one that really strikes me is small claims court, where many of the cases in class actions are really too small to pursue otherwise but often are not terribly complicated matters. Perhaps the implications of the ruling are broader than the SCC immediately considered.”

Marcotte involves two cases against the City of Longueuil that were joined together at appeal. Dissatisfied with their tax assessment following the creation of the new city — established after a controversial and sweeping municipal reform undertaken by the Quebec government in the early 2000s — a citizen and a business corporation applied separately for authorization to institute class actions to quash the municipal by-laws imposing property taxes and the business tax.