December 2016
PFD | Municipal

Judicial review of a report by the Commission municipale du Québec and the legal representation fees of an elected municipal official

By Stéphanie Provost Lawyer

On April 30, 2015, the Commission municipale du Québec (hereinafter CMQ) released a report on certain aspects of the administration of Ville de L'Assomption (hereinafter L'Assomption). The CMQ severely criticized the city's mayor, Mr. Jean-Claude Gingras, for behaviours it considered unreasonable, unacceptable, inadmissible and even unlawful. 

On June 15, 2015, Mr. Gingras filed an application for judicial review of the CMQ's report, seeking the revocation of certain parts of the report on the acts of which he is accused. Because the city had agreed to pay for his legal representation fees during the CMQ's inquiry, Mr. Gingras asked for L'Assomption to also cover the costs as part of the review process, based on section 604.6 of the Cities and Towns Act (hereinafter the Act), which stipulates that a municipality shall:

assume the defence or the representation, as the case may be, of a person who is the defendant, respondent or accused, or the person impleaded in judicial proceedings brought before a court by reason of the person's alleged act or omission in the performance of his duties as a member of the council or as an officer or employee of the municipality or a mandatary body of the municipality.

Deeming that Mr. Gingras had failed to comply with article 604.6 of the Act, the city refused to bear the costs of Mr. Gingras' legal fees. To justify its decision, L'Assomption maintained that:

  • Mr. Gingras was not a defendant, respondent or accused in the application for judicial review but the applicant;
  • that the application for judicial review is not based on an allegation of an act or omission in the performance of Mr. Gingras' duties but rather on issues regarding the CMQ's inquiry process.

Mr. Gingras contested the city's decision and, on August 23, 2016, the Superior Court of Québec ruled in his favour1. L'Assomption must therefore pay for Mr. Gingras' legal fees as part of the judicial review, which he sought. But how did the Superior Court come to this conclusion?

First, regarding the grounds for the application for judicial review, the Court asserted that the issue was a false debate since Mr. Gingras' arguments were based on the acts and omissions he is accused of committing in his role as an elected official. According to the Court, with section 604.6 of the Act, the legislator aims to provide financial protection for an elected official who is reprimanded for his/her conduct as part of his/her duties, as is the case here.

Second, in the application of article 604.6 of the Act, the Court affirmed that it had to consider Mr. Gingras' situation at the time the municipality's obligation to cover his legal fees arose: at the start of the CMQ's inquiry. Again, according to the Court, once an obligation arises, it continues until the final stage of the judgement.

In sum, Mr. Gingras benefited from the protection provided under article 604.6 of the Act as soon as the CMQ's inquiry got underway. Because the application for judicial review of the CMQ's decision ensures that the judgement has not reached its final stage, Mr. Gingras maintains the same status he had during the CMQ's inquiry and therefore continues to be entitled to the rights under article 604.6 of the Act and may require the city of L'Assomption to cover the costs of his legal representation.

1 Gingras c. Commission municipale du Québec, 2016 QCCS 3958.