Court of Appeal of Quebec

Procureure générale du Québec c. 9105425 Canada Association

April 12, 2018



Application for confirmation or safeguard order during the appeal. Allowed.

The case concerns the respondents’ project to build an airport in the city of Mascouche, which, in December 2016, sought a permanent injunction to prohibit any work likely to harm wetlands or watercourses before a certificate of authorization was obtained. That month an application for a provisional injunction was granted, followed by a safeguard order. This last order was not extended, but in a decision rendered in March 2017, the Court of Appeal granted the safeguard order initially sought. In February 2018, the Superior Court dismissed the application for a permanent injunction and concluded that the airport construction project was not subject to the Environment Quality Act (CQLR, c. Q-2) because aeronautics falls exclusively within federal jurisdiction. The respondents resumed work. The appellant has filed a notice to appeal the judgment rendered and asks that it be noted and confirmed that the March 2017 safeguard order, which the respondents agreed to extend, is similar in nature to an interlocutory injunction and is still in force. In the alternative, the appellant asks that a safeguard order to the same effect be issued under art. 379 of the Code of Civil Procedure (CQLR, c. C-25.01) (C.C.P.).

In its March 2017 decision, the Court intended to issue a safeguard order, not an interlocutory injunction. The respondents’ undertaking not to perform work until judgment was rendered on the permanent injunction changes nothing, and no event has occurred to transform the safeguard order into an interlocutory injunction. The tests allowing a safeguard order to be issued – colour of right, irreparable harm, balance of convenience, and urgency – are all met. With respect to the order to be issued, the Court has to determine whether the safeguard order under art. 379 C.C.P. is a case management measure subject to paragraph 8 of art. 158 C.C.P., or if it is instead a separate and independent procedural vehicle that can only be applied before the Court. Nothing in the wording of the provision limits the maximum period of a safeguard order during an appeal. It is therefore possible to issue a safeguard order that will remain valid as long as necessary to achieve its objective. Here, the purpose of the order issued was to prevent the disputed work from being performed without a certificate of authorization before the Court decides if the Act applies and to what extent. The order is therefore valid until judgment is rendered on the appeal or the respondents obtain a certificate of authorization.

*Summary by SOQUIJ
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