September 17, 2018
Doyon, Savard, Rancourt
Appeal from a judgment of the Superior Court granting an application based on ss. 227 and 231 of the Act respecting land use planning and development (CQLR, c. A-19.1) and dismissing a cross-application claiming damages and punitive damages ($160,000). Allowed for the sole purpose of correcting the reasons of the trial judgment to specify the dismissal of the cross-application.
On November 10, 2015, the Superior Court ordered the appellant to, inter alia, carry out various works on the building she owns. Failing the appellant’s compliance with the various orders within the prescribed time limit, the judgment allowed the respondent city to demolish the building without further notice and at the appellant’s expense. The appellant contested the scope of the respondent’s powers of inspection pursuant to by-law 2009-U51 concerning the application and administration of urban planning by-laws, as well as the lawfulness of the inspection that took place in her building on September 17, 2015, after she had refused to grant the inspector access, and the admissibility of the evidence resulting therefrom. She also criticized the trial judge for dismissing her cross-application.
In this case, the respondent could not rely on s. 3.1.3(3) of by-law 2009-U51 to gain access to the inside of the appellant’s building as the appellant had refused to grant that access. The respondent had to have had a reasonable belief that the building was a dwelling house when attempting to pick the locks or enter the building through the window. This inspection, as it was carried out, infringes s. 24.1 of the Charter of human rights and freedoms (CQLR, c. C-12) and s. 8 of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, app. II, No. 44, Schedule B, Part I).
However, the inspection in dispute, carried out on September 17, 2015, revealed that, on that date, the building was not being used as a dwelling house. Furthermore, the photographs of the premises taken during this visit speak volumes as to its state of general disrepair. In addition, at the hearing, the appellant reiterated that she has not lived there since 2004. The invasion of her privacy is thus of lesser importance. Moreover, the evidence resulting from the impugned inspection went to the heart of the debate before the judge and was the continuation of an inspection carried out in 2012. The appellant was able to respond to this evidence in particular by having an expert testify on the state of the premises and the modifications made to the building, even during the trial. In these circumstances, a fair weighing of the relevant factors of the analysis under art. 2858 of the Civil Code of Québec (S.Q. 1991, c. 64) – the seriousness of the infringement and the stakes of the trial – authorized the use of the evidence relating to the September 2015 inspection that would not tend to bring the administration of justice into disrepute. This is a case where the truth-seeking function of the trial is better served by admitting rather than excluding the evidence.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca.
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