In Ville de Saint-Colomban v. Commission municipale du Québec, 2020 QCCS 3396, Mr. Justice Michel Yergeau dismissed judicial review of an administrative body’s decision to decline jurisdiction to conduct statutory arbitration where both parties had not expressly consented to arbitration as required by the statute. Despite the availability of arbitration before the administrative body and both parties using the term ‘arbitration’ to refer to the administrative proceeding, the term did not change the nature of the proceeding. Applying judicial review standards of review refreshed by Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 Yergeau J. determined that the decision was reasonable and intervention was unwarranted.
Ville de Saint-Colomban (“Saint-Colomban”) and Ville de Saint Jérôme (“Saint-Jérôme”) disputed overlapping decision-making authority involving a public road which crossed through each of their respective municipal areas. Roadwork along the road prompted Saint-Jérôme to impose turn restrictions at a key intersection thereby requiring drivers headed to and from Saint-Colomban to take extended detours. The signal changes were not discussed before being imposed.
Article 24 of the Act respecting the Commission municipale, CQLR c C-35 (“ACM”) applies to disputes between municipalities which can be referred to arbitration.
“24. Two or more municipal bodies may agree to refer any existing or prospective dispute to the Commission for arbitration.
24.1. No dispute which, pursuant to an Act, must be decided by an authority other than a court of justice may be referred for arbitration under this division.
24.2. Arbitration under this division shall take place before a member of the Commission who shall be designated by the president within 30 days of a written application submitted by the parties.
The arbitration proceedings shall commence on the date of sending of the application.
24.3. Articles 620 to 623 and 632 to 648 of the Code of Civil Procedure (chapter C-25.01) and the provisions of such Code referred to in the said articles apply, adapted as required, to arbitration proceedings under this division”.
The municipalities did negotiate an agreement but did so with reference to article 75 of the ACM.
“Section 75 – When a public road is divided by the boundary of two local municipalities in such a way that a single municipality must be responsible for managing that road, the municipalities concerned must enter into an intermunicipal agreement.”.
The municipalities disputed further and, eventually, Saint-Colomban applied to the Commission municipale du Québec (“Commission”), created by the ACM, to resolve the dispute using its authority under section 76. That article provides that if the municipalities failed to enter into an agreement under section 75, either one may request that the Commission rule on whether the management of the parts of the public road concerned need be the responsibility of a single municipality or decide, if necessary, which municipality is to be responsible and prescribe rules for the sharing of expenses. Article 76 stipulates that the Commission must hear the municipalities before deciding.
As authorized and required, the Commission held a hearing at which it heard witnesses and argument. When opening the hearing, the Commission defined the matter as [informal translation] ‘an arbitration between the municipalities of Saint-Colomban and Saint-Jérôme’ regarding management of the road in question (« un arbitrage entre les villes de St-Colomban et de St-Jérôme relatif à la gestion de la Côte St-Nicholas »).
After the hearing, the Commission issued a January 21, 2020 decision (“Decision”) entitled [informal translation] ‘Arbitration regarding management of a public road’ (« Arbitrage relatif à la gestion d’une voie publique »). On the merits of the dispute, the Commission in its Decision determined that: (i) there was no need for a single municipality to be responsible for the management of the parts of the public road concerned; and, (ii) the Commission had not been seized with an arbitration under article 24 of the Act respecting the Commission municipal.
Saint-Colomban applied to the Superior Court for judicial review of the Decision. It challenged both aspects of the Commission’s Decision, including the refusal to resolve the dispute under article 24 of the ACM.
Yergeau J. observed that Saint-Jérôme had refused to participate in the mediation, set out at article 23.1 of the ACM which provided for mediation on specific terms.
“Article 23.1 – Where the president of the Commission considers it expedient and the subject-matter and circumstances of the case so permit, the president may, with the consent of the parties, refer any dispute in respect of which the Commission may intervene under any legislative provision to a mediator designated by the president from among the members of the Commission”.
Yergeau J. also noted that, with the support of Saint-Jérôme, Saint-Colomban applied to the Commission under article 76 of the ACM. He referred to it as a joint application. He noted that article 24 of the ACM mentioned arbitration whereas article 76 of the ACM omitted any mention of arbitration.
At paras 65-70 of his reasons, Yergeau J. identified references made by the municipalities which could help identify their approach to the hearing as an arbitration.
In an application for injunctive relief and safeguard orders against Saint-Colomban, Saint-Jérôme referred to the process undertaken by both municipalities before the Commission and identified that process as an [informal translation] ‘arbitration under article 76 of the ACM’ (« arbitrage en vertu de l’article 76 de la Loi sur les compétences municipales »). The application sought relief which would have effect until [informal translation] ‘an arbitral award issued by the Commission had final effect/res judicata in file CMQ-67163’ (« jusqu’à ce qu’une sentence arbitrale passée en force de chose jugée soit rendue par la Commission municipale dans le dossier CMQ-67163 »). In the heading to it application, Saint-Jérôme referred to article 623 Code of Civil Procedure (chapter C-25.01) (“C.C.P.”) which is placed in Book VII of the C.C.P. for arbitration.
“Article 623 C.C.P. The court, on an application, may grant provisional measures or safeguard orders before or during arbitration proceedings”.
Despite mention of “arbitration” in its court proceedings, Saint-Jérôme expressed formal objection to engaging in arbitration when filing its written argument before the Commission. It expressly said that it did not consent under article 24 and reminded that article 24 expressly stipulated that both municipalities must consent.
Yergeau J. noted that, in its Decision, the Commission dismissed Saint-Colomban’s request to treat its application as an arbitration. It had noted that Saint-Jérôme had not consented to arbitration under article 24 and that the application to the Commission was a joint application by the municipalities under article 76.
Saint-Jérôme’s use of the term “arbitration” in its application above did not serve to convert the joint application under article 76 into an article 24 arbitration. As a result, Yergeau J. observed that the Commission declared that it had no jurisdiction to conduct an arbitration where both parties had not consented as required by legislation.
Further into his reasons, Yergeau J. undertook judicial review of the Commission’s Decision. Given that the application was for judicial review of administrative action, Yergeau J. applied the principles applicable, and noted that the case raised no exceptions to the principles established in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.
At paras 87-89, he held that the Commission’s decision to confirm absence of jurisdiction was a reasonable decision. In so deciding, the Commission merely applied the legislation as written. Article 24 was precise and unequivocal and was susceptible to no interpretation. As a result, sitting in judicial review, Yergeau J. held that the Commission’s Decision justified no intervention.
urbitral notes – First, the complex dispute prompted each of the municipalities to invoke other legislation, including Municipal Powers Act, CQLR c C-47.1, Cities and Towns Act, CQLR c C-19, Highway Safety Code, CQLR c C-24.2 and an Act respecting roads, CQLR c V-9.