Mainville, Baudouin, Bachand

Appeal from a judgment of the Superior Court granting an application under section 227 of the Act respecting land use planning and development (CQLR, c. A-19.1). Allowed in part.

The impleaded party owns an immovable in which the appellant operates an establishment known as “New City Gas”. This establishment has two outdoor patios that are used in the summer for dancing, DJ sets, or outdoor festivities where music plays through speakers. This creates annoyances for the neighbourhood. The trial judge concluded that the appellant’s use of the outdoor areas was non-conforming with the municipal by-laws.

Good faith is one of the criteria established in Montréal (Ville de) c. Chapdelaine (C.A., 2003-04-29), SOQUIJ AZ-50172381, J.E. 2003-987, [2003] R.J.Q. 1417, as the basis for a judge to exercise discretion under section 227 of the Act respecting land use planning and development to dismiss the proceeding of a municipality requiring conformity to its by-laws. This power can be exercised essentially to mitigate inequities and injustices that might result in certain circumstances from a strict and rigorous application of the law. In this case, it was open to the judge to determine that there were no exceptional circumstances that justified the exercise of her discretion, in particular because the derogation sought was not minor, the effects of the orders sought were not purely theoretical, and the appellant’s good faith had not been proved.

Furthermore, section 172 of the Sud-Ouest borough’s urban planning By-law 01-280 provides that [translation] “unless otherwise stated, any actions relating toa use must take place inside buildings”. Here, the appellant proposes essentially a literal reading of this by-law, which is inconsistent with the modern method of interpretation. There is no doubt that the patios or [translation] “courtyards” located behind and west of the building housing New City Gas are not [translation] “buildings” within the meaning of the zoning by‑law. Moreover, because any activities relating to a use must take place [translation] “inside buildings”, characterizing the patios as buildings would deprive the word [translation] “inside” of its meaning. What is more, the need to obtain a construction permit to build a patio does not transform this structure into a building. Finally, the interpretation favoured by the appellant is contrary to the legislative objective of minimizing neighbourhood annoyances by limiting noisy and bothersome activities to inside buildings.

As for paragraph 1 of section 9 of the noise by-law (R.R.V.M., c. B-03), it concerns noises emanating from sound devices located inside or outside buildings that may be heard outdoors because it is not ambient noise and interferes with the peaceful use of the urban space. Thus, insofar as the sound coming from authorized activities inside the building can be heard on the patios but not in the public urban space, the order rendered by the judge is inapplicable. It should therefore be varied to limit the prohibition on noise made by authorized activities inside the building that can be heard outside the building in the urban public space.

Legislation interpreted: section 172 of the Sud-Ouest borough’s urban planning by-law 01-280 and section 9 paragraph 1 of the noise by-law

Text of the decision: http://citoyens.soquij.qc.ca