Court of Appeal of Quebec

Benoit c. Ville de Sutton

September 11, 2018

500-09-026594-176

Hilton, St-Pierre, Roy

Appeal from a judgment of the Superior Court dismissing an application for declaratory judgment and to quash and annul various zoning and subdivision by-laws. Allowed.

The action of the 24 appellant citizens concerned zoning by-law 254 and subdivision by-law 256, as well as approximately 50 other by-laws adopted subsequent to the referendum approving by-laws RZ 254 and RL 256. Although the trial judge acknowledged that, in quantitative terms, the by-laws were replaced, he nonetheless accepted the respondent’s theory that they were in fact amended. According to him, the appellants had to discharge the additional burden of showing, in qualitative terms, a substantial inconsistency of content between the impugned by-laws and the planning program in effect. Because in his view the appellants failed to establish this, the judge found that by-laws RZ 254 and RL 256 were not replacement by-laws within the meaning of the Act respecting land use planning and development (CQLR, c. A-19.1).

By-laws RZ 254 and RL 256 are not incorporated into by-laws RZ 115 and RL 116. Rather, they repeal these former by-laws, which the respondent is eliminating, and all the zoning and subdivision provisions are henceforth exclusively found in by-laws RZ 254 and RL 256. Thus, new provisions are substituted for old ones on the same subject matter, and these substitutions entail statutory amendments and reform. Moreover, the new by-laws are complete in themselves and cover the entire territory. By-laws RZ 254 and RL 256 are therefore replacement by-laws within the meaning of the Act. However, the respondent may replace its by-laws only on the same day as the five-year revision of its planning program, on pain of nullity. Because these replacements were made at a different time, by-laws RZ 254 and RL 256 are null. Moreover, from a qualitative standpoint, the respondent’s objectives upon adopting by-laws RZ 115 and RL 116 were modified. Therefore, the respondent adopted replacement by-laws that were prohibited under s. 110.10.1 of the Act respecting land use planning and development.

Finally, if the conclusion were otherwise (i.e., that the by-laws were amendments, not replacements), the respondent’s process would be flawed and therefore any steps it took would in any event be invalidated. The judge should have found that the goal of the public meeting (informing the public) and of the second paragraph of s. 127 of the Act in particular (enabling citizens to identify provisions subject to approval by way of referendum) was not achieved and, for this reason alone, should have annulled the impugned by-laws. 

*Summary by SOQUIJ

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