Court of Appeal of Quebec

Poitras c. D'Onofrio

June 28, 2018

500-09-026724-179

Marcotte, Hogue, Rancourt

Appeal from a judgment of the Superior Court. Allowed in part.

The trial judge struck down the inclusion of the words [translation] “or to a private street existing at the time of the coming into force of this by-law” in s. 1(4) of Règlement CA28 0012 relatif à certaines conditions d'émission du permis de construction pour l'ensemble du territoire de l’Île-Bizard‑Sainte-Geneviève (by-law CA28 0012 respecting certain conditions of issue of a building permit for the whole territory of Île-Bizard-Sainte-Geneviève), declaring this inclusion ultra vires the powers of the borough. He also cancelled the issue of six building permits to the appellant, declared that the immovable built by the appellant contravenes the by-law, and ordered its demolition. 

By-law CA28 0012 was enacted by the borough of l’Île-Bizard—Sainte-Geneviève under the powers conferred by s. 116(4) of the Act respecting land use planning and development (CQLR, c. A-19.1). Aware of the privileged position that municipalities occupy, the legislature chose to allow them to regulate the development of their territory and control the pace of such development. To this end, it conferred upon municipalities the power to provide, by by-law, that no building permit may be granted unless one or more of the five conditions in s. 116 of the Act are met. In exercising its regulatory power under this provision, a municipality may choose to add an additional, less onerous, requirement to the conditions set out in the Act where the objective of this requirement is to protect rights by taking existing situations into account. Moreover, insofar as the municipality is the entity that is most familiar with its territory and is therefore best positioned to determine whether it is appropriate to allow immovables to be built on land that is not adjacent to either a public or a private street in compliance with the subdivision by-law, the power to ease the requirements that the law allows it to impose with a view to protecting existing situations is a logical consequence of the power conferred upon it. 

The by-law the borough enacted in this case allows the development that it deems appropriate to the distinctive features of its territory. It is not inconsistent with the enabling provision; on the contrary, it respects its spirit and allows the objective sought to be achieved. The interpretation proposed by the respondents and accepted by the trial judge unduly limits the powers conferred on the municipality, and there was no basis to declare the inclusion of the words [translation] “or to a private street existing at the time of the coming into force of this by-law” in s. 1(4) of by-law CA28 0012 to be ultra vires the borough’s powers.

*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca. This link open an external website in a new window.

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