April 18, 2019
Rochette, Dufresne, Bouchard
Appeal from a judgment of the Superior Court granting an application for judicial review and dismissing an application for a declaratory judgment. Dismissed.
Three pipes belonging to the appellant city, installed under a road that runs along the respondents’ building, discharge water from higher lands. In May 2002, the parties entered into a transaction according to which the appellant undertook to perform the work necessary to stop the water from discharging on the respondents’ property. Despite the work being carried out, in 2011, the problem was still unresolved. On November 7, 2014, the Superior Court granted the respondents’ application and ordered the appellant to ensure that the water would no longer be transported by the pipes toward the respondents’ building by December 1, 2015, at the latest (which was later postponed by the Court to March 3, 2017). On February 2, 2016, the appellant’s appeal from that judgment was dismissed. On January 16, 2016, the appellant adopted a resolution to acquire through expropriation draining, non-construction, and right of way servitudes on parts of the respondents’ lots. On January 22, 2018, the trial judge found that by acquiring these servitudes by expropriation, the appellant was authorizing itself to continue to discharge the water from the higher lands on the respondents’ property and to worsen the situation. According to the trial judge, by acting in this manner, the appellant abused its power to expropriate and acted in bad faith.
The Honourable Dufresne J.A., with whom Rochette and Bouchard JJ.A. agree: While the appellant undoubtedly has the power to expropriate for the purpose of acquiring servitudes, its exercise for improper purposes entails, in this case, the nullity of its decision to expropriate and that of the corresponding notices. Indeed, the appellant abusively favoured a solution, that is, the acquisition of servitudes through expropriation and the partial execution of the recommended work, which makes it impossible to enforce the order rendered against it. Once the servitudes are acquired, the water will still be discharged as they were before the order, and in the appellant’s view, the respondents will no longer be able to do anything about it. That being the case, the appellant acted in bad faith and shirked its legal responsibilities. In so doing, the appellant’s exercise of its discretionary power is imbued with recklessness and bad faith, as the judge decided.
The Honourable Rochette J.A., with whom Dufresne and Bouchard JJ.A. agree: Proceedings brought in bad faith or recklessly may be declared abusive. In this case, taking into account the history of the case, the nature of the ruling that was required at the outset to standardize the situation, the appellant’s stubbornness, which made it necessary for the respondents to appeal on four occasions to the Superior Court, and the grounds raised in support of the appeal, it must be found that the appeal is abusive and that the respondents should be reimbursed the extrajudicial fees and the costs incurred for the purposes of this appeal.
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