A.G. (Que.) v. Carrières Ste-Thérèse Ltée, [1985] 1 S.C.R. 831
The Attorney General of the Province of Quebec Appellant;
and
Carrières Ste‑Thérèse Ltée Respondent.
File No.: 17331.
1985: March 8; 1985: June 13.
Present: Dickson C.J. and Beetz, Estey, McIntyre, Lamer, Wilson and La Forest JJ.
on appeal from the court of appeal for quebec
Administrative law ‑‑ Power of Minister ‑‑ Order ‑‑ Validity ‑‑ Order made by Deputy Minister instead of Minister ‑‑ Order quashed ‑‑ Public Health Act, R.S.Q. 1964, c. 161, s. 55.
Respondent continued operating its crushing plants without having a dust exhaust system approved and installed, contrary to an order made by the Deputy Minister of Social Affairs pursuant to the provisions of s. 5 of the Social Affairs Department Act and ss. 42, 46 and 55 of the Public Health Act. Complaints were filed against respondent under the Summary Convictions Act and it was convicted of unlawfully operating its plants. Respondent then appealed by trial de novo to the Superior Court, which quashed the decision of the judge of the Court of Sessions of the Peace on the ground that the order could only be made by the municipal authority or by the Minister in person. A majority of the Court of Appeal affirmed the judgment. These appeals at bar were to determine whether the Deputy Minister could validly make this order on behalf of the Minister.
Held: The appeals should be dismissed.
The order made and signed by the Deputy Minister is void. Under s. 55 of the Public Health Act, only the Minister in person could validly sign this order. The wording of s. 55 is clear and precise. It provides that, in cases which he deems to be urgent, the Minister may exercise directly the powers vested in the municipal authorities by ss. 46 to 55 of the Public Health Act, but he must then exercise them himself.
Cases Cited
In re Golden Chemical Products Ltd., [1976] 1 Ch. 300; R. v. Harrison, [1977] 1 S.C.R. 238, referred to.
Statutes and Regulations Cited
Public Health Act, R.S.Q. 1964, c. 161, ss. 42, 46, 49, 55.
Social Affairs Department Act, 1970 (Que.), c. 42, ss. 4, 5, 8.
APPEALS against five judgments of the Quebec Court of Appeal, [1982] C.A. 304, affirming five judgments of the Superior Court. Appeals dismissed.
Pierre Lemieux, for the appellant.
Pierre LePage and André Denis, for the respondent.
English version of the judgment delivered by
1. The Court‑‑On October 26, 1972 an order was made pursuant to ss. 42 et seq. of the Public Health Act, R.S.Q. 1964, c. 161. That order read as follows:
[TRANSLATION]
ORDER
TO:
Les Carrières Ste‑Thérèse Ltée
City of Ste‑Thérèse‑Ouest
County of Terrebonne
...
...under the powers conferred on me by ss. 5 of the Social Affairs Department Act (1970, chapter 42) and 42 et seq. of the Public Health Act (R.S.Q. 1964, chapter 161), I declare to be a public nuisance the operation of your asphalt and crushing plants as hitherto operated in the City of Ste‑Thérèse‑Ouest, and I order you, in order to remove this nuisance,
(1) to prepare or cause to be prepared forthwith plans and specifications for a dust exhaust system at the various emission points in your plants, such as crushers, sieves, conveyers, loading, transfer and transportation areas, and so on....;
(2) to submit these plans and specifications to the environmental safety branch of the Department of Municipal Affairs and have them approved: the head of this branch is Jean‑A. Roy, engineer;
(3) not to operate your plants until the dust exhaust system as approved by the environmental safety branch in accordance with the foregoing paragraph has been installed to the satisfaction of the said branch.
If you fail to comply with this order, the proceedings mentioned in the Act for such cases will be taken immediately: the whole without prejudice to any other proceeding which may be brought against you.
2. The order concludes with the following words, written in typescript: [TRANSLATION] "Minister of Social Affairs, per:". It then bears the handwritten signature of the Deputy Minister of Social Affairs, with his family and given names repeated in typescript with his title, "Deputy Minister of Social Affairs".
3. The Court must decide whether the Deputy Minister could validly make this order on behalf of the Minister.
4. On May 21, 1974 five complaints were filed against respondent alleging that it operated its crushing or asphalt plants on five different dates, without obtaining approval for the plans and specifications of a dust exhaust system, and without installing such a system. The five dates in question are October 24 and November 5, 9, 12 and 14, 1973. All the complaints are worded in a similar fashion, except as to the date of the alleged offence and the number of times it was repeated, which may be relevant in sentencing. As an example, the complaint relating to the offence of October 24 reads as follows:
[TRANSLATION] CARRIERES STE‑THERESE LIMITEE, at Ste‑Thérèse‑Ouest, district of Terrebonne:
did unlawfully operate its crushing or asphalt plants on or about October 24, 1973 without having the plans and specifications of a dust exhaust system approved by the environmental safety branch of the Department of Municipal Affairs, and without installing such a dust exhaust system to the satisfaction of the environmental safety branch;
the whole contrary to an order made by the Deputy Minister of Social Affairs on October 26, 1972, pursuant to the provisions of s. 5 of the Social Affairs Department Act (1970, chapter 42) and ss. 42, 46 and 55 of the Public Health Act (R.S.Q. 1964, chapter 161) and received by LES CARRIERES STE‑THERESE LIMITEE on December 2, 1972, thereby committing a second offence as specified in section 106 of the Environment Quality Act (1972, chapter 49).
5. On March 31, 1978, respondent was convicted of the offences charged by a judge of the Court of Sessions of the Peace, acting as a justice of the peace pursuant to the Summary Convictions Act, R.S.Q. 1964, c. 35, and on April 14, 1978, it was sentenced to pay a $10,000 fine for each of the five offences, pursuant to the Environment Quality Act, 1972 (Que.), c. 49, a statute which meanwhile had replaced the Public Health Act. The problem submitted to this Court was not raised before the judge of Sessions of the Peace.
6. Respondent appealed to the Superior Court by trial de novo, and on November 20, 1978, that Court allowed the appeal and quashed the decisions of the judge of Sessions of the Peace on the ground that an order with such far‑reaching consequences as that of October 26, 1972 could only be made by the elected municipal authority or by the Minister in person, also elected, but not by a public servant, however senior.
7. On December 4, 1978, appellant obtained leave from a judge of the Court of Appeal to appeal in the five cases on the following point of law:
[TRANSLATION] "The validity and legality of an order made pursuant to the Public Health Act"
8. On June 14, 1982, in five majority judgments, the Court of Appeal dismissed the five appeals. The reasons of the Court of Appeal are contained in the judgment on the offence allegedly committed on October 24, 1973, [1982] C.A. 304. The reasons of the other judgments simply refer to this one.
9. One of the judges in the majority held that the order made on October 26, 1972, though applicable to a particular case, is still legislative in nature and cannot be delegated to the Deputy Minister, in view of the maxim Delegatus non potest delegare. In his view it does not, as the dissenting judge considered, fall within administration of the day‑to‑day business of the Department, which is the responsibility of the Deputy Minister. The other judge in the majority considered that the order made on October 26, 1972, entailed the exercise of a judicial power and a legislative power, which because of their significance could not be delegated to a public servant.
10. The dissenting judge analysed the relevant legislation, in particular s. 4 of the Social Affairs Department Act, 1970 (Que.), c. 42, which gives the Deputy Minister the power to administer day‑to‑day business under the direction of the Minister; in his view, this power includes that of making the order of October 26, 1972, as in general the significance of the consequences for individuals should not be taken into account in this regard, and he cited in support, in addition to abundant textbook authority, judgments such as those in In re Golden Chemical Products Ltd., [1976] 1 Ch. 300, and R. v. Harrison, [1977] 1 S.C.R. 238.
11. The order of October 26, 1972, and the complaint refer to s. 5 of the Social Affairs Department Act, and to ss. 42 et seq., in particular ss. 42, 46 and 55, of the Public Health Act. It is necessary to cite the text of these provisions, along with certain other sections from the same Acts, which were also discussed by the Court of Appeal and the parties.
12. First, the relevant provisions of the Social Affairs Department Act read as follows:
4. The Lieutenant‑Governor in Council shall appoint a Deputy Minister of Social Affairs, hereinafter called "the Deputy Minister".
Under the direction of the Minister, the Deputy Minister shall supervise the officers and employees of the Department; he shall administer its day to day business and exercise the other powers assigned to him by the Lieutenant‑Governor in Council.
5. The orders of the Deputy Minister shall be carried out in the same manner as those of the Minister; his authority shall be that of the head of the Department and his official signature shall give force and effect to any document within the jurisdiction of the Department.
...
8. No deed, document or writing shall bind the Department or be attributed to the Minister unless it is signed by him, the Deputy Minister or an officer and only, in the case of the latter, to the extent determined by regulation of the Lieutenant‑Governor in Council published in the Québec Official Gazette.
The relevant provisions of the Public Health Act read as follows:
42. Everything declared by the Minister or by a municipal council or its board of health to be a nuisance or to be injurious to public health shall be considered to be such.
An appeal may, however, be taken to the Minister as to the definition given by a municipal council or by its board of health.
13. Section 43 imposes on the municipal sanitary authority a duty to cause the immoveables to be visited to ascertain whether there are any accumulations of filth, dirt, rubbish or other matter deleterious to health, or whether there are any nuisances.
14. Section 44 specifies who may file a complaint concerning a nuisance or unhealthy condition.
15. Section 45 imposes on the municipal sanitary authority a duty to institute an inquiry on receipt of a complaint and confers powers relating to this duty.
16. Section 46 provides:
46. When, upon a complaint or after inspection by its officers, the municipal sanitary authority has become aware of the existence, upon an immoveable situated within the municipality, of a nuisance or of unhealthy conditions, it shall give notice in writing to the person responsible for such nuisance or unhealthy condition, or, if such person cannot be found, to the owner or occupant of the immoveable, requiring him to abate the same or to do the necessary work to prevent its return, within the delay mentioned in the notice.
If it be ascertained that the nuisance or unhealthy condition arises from some defect in the construction of the building, or if the property be unoccupied, the notice prescribed by this section shall be given to the owner.
If the person responsible for the existence of such nuisance or unhealthy condition cannot be found, and if the municipal sanitary authority be of opinion that the nuisance or unhealthy condition is not due to the acts or omissions of the owner, it may cause it to be abated at the expense of the municipality.
17. Sections 47 and 48 are not relevant to the case at bar.
18. Section 49 provides:
49. If the notice mentioned in section 46 has no effect, the municipal health [sic] authority may have the necessary work to remove the nuisance or unhealthy condition done at the expense of the person in default.
However, if the performance of such work would entail an expense of five hundred dollars or more, such person may appeal therefrom to the Minister within fifteen days from the service of the notice.
If, after investigating the truth of the facts by every means he may deem advisable, the Minister decides that the nuisance must be abated, he shall give the appellant and the municipal sanitary authority notice of his decision, and the appellant shall comply therewith within the delay fixed by the decision; and if he fail to do so, the work shall be executed by the municipal sanitary authority at the expense of the appellant.
19. Section 50 concerns the fines that may be imposed on persons not complying with an order to abate a nuisance or unhealthy condition. As mentioned above, these fines have been replaced by those specified in the Environment Quality Act.
20. Sections 51 to 54 inclusive are not relevant to the case at bar.
21. Finally, s. 55 which, in our opinion, is conclusive, provides in its two versions:
55. Le ministre peut exercer directement lui‑même les pouvoirs confiés aux autorités municipales par les articles 46 à 55, dans les cas où il juge qu'il y a urgence.
55. The Minister may himself exercise directly the powers vested in the municipal authorities by sections 46 to 55, in the cases which he deems to be urgent.
22. Appellant referred, first, to the general principles of the common law, according to which the powers of a Minister of the Crown are allegedly delegated by implication to a Deputy Minister. It relied inter alia on the textbook authority and precedent mentioned by the dissenting judge in the Court of Appeal.
23. Appellant further argued that the delegation of the Minister's powers to the Deputy Minister was made expressly by s. 5 and the first paragraph of s. 8 of the Social Affairs Department Act.
24. Finally, appellant argued that the judges in the majority on the Court of Appeal erred by considering the nature and significance of the power delegated, contrary to the judicial authority cited by the dissenting judge.
25. It does not appear necessary to decide whether the principles of the common law and ss. 4, 5 and 8 of the Social Affairs Department Act have the scope suggested for them by appellant. Even admitting for the sake of argument that they have that scope, such general principles, whether or not codified by legislation which is itself as general as the sections in question, could not override such special, specific and express legislation as that of s. 55 of the Public Health Act.
26. This section is not mentioned in the order of October 26, 1972, but it is mentioned in the complaint. Further, appellant did not dispute that the Department of Social Affairs acted under this section, for it pleaded a state of urgency in responding to another objection raised by respondent, namely that the order contained no time limit as provided by ss. 46 and 49.
27. Section 55 provides that, in cases which he deems to be urgent, the Minister may exercise directly the powers vested in the municipal authorities by ss. 46 to 55, but he must then exercise them himself.
28. When questioned at the hearing on the meaning and scope of the word "himself", counsel for the appellant answered that this was a redundancy. We cannot agree. The legislator does not speak in vain.
29. The dissenting judge wrote that s. 55 is designed to emphasize that the Minister may sometimes short‑circuit the municipal authorities, and that no other meaning than this should be given to the word lui‑même [himself]. With respect, the Court also cannot adopt this view. The word directement [directly] suffices to confer on the Minister the power to short‑circuit the municipal authorities, that is, the power to act otherwise than by way of appeal from the municipal authorities' order‑‑and we do not have to decide whether he can act directly in non‑emergency situations. But we feel that he can only exercise the emergency powers conferred by s. 55 if he is exercising them himself, that is, in person. This is the usual meaning and the one generally given to it by the dictionaries. Thus, the Dictionnaire du français vivant (Bordas) (1972) gives the word lui‑même as a synonym for "in person", as does the Grand Larousse de la langue française (1975). Littré, Dictionnaire de la langue française (1957), states that:
[TRANSLATION] Même is used without article, immediately after nouns to indicate more clearly the person or thing referred to .... It is joined in the same way with personal pronouns.
The Dictionnaire Quillet de la langue française (1975) states that [TRANSLATION] " placed after a pronoun which it modifies, [même] is used to place emphasis on the person, the identity...." The word "himself" in the English version does not have a different meaning. The Shorter Oxford English Dictionary (3rd ed., 1973) gives as its first meaning "Emphatic use, very him, very he, that very man". The Random House Dictionary of the English Language (1973) also gives as the first meaning "an emphatic appositive of him or he: He himself spoke to the men".
30. We conclude that only the Minister in person could validly have signed the order of October 26, 1972. It is therefore void.
31. The five appeals should be dismissed. Respondents shall be entitled to costs in this Court on a solicitor and client basis, both on the application for leave to appeal and on the appeals.
Appeals dismissed.
Solicitors for the appellants: Claude Bouchard and Jean Piette, Ste‑Foy.
Solicitors for the respondent: Viau, Hébert, Denault, Montréal.