Schrager, Baudouin, Hardy

Application for leave to appeal de bene esse. Granted. Appeal from a judgment of the Superior Court dismissing a declinatory exception. Allowed.

In the context of an application to partition an immovable held in undivided co-ownership brought by the respondent against the impleaded parties, the trial judge found that the definition in s. 1(3) of the Act respecting the preservation of agricultural land and agricultural activities (CQLR, c. P. P-41.1) of “alienation” does not include judicial partition. According to the judge, ss. 29 and 58 of the Act cannot be interpreted as withdrawing the Superior Court’s jurisdiction to hear an application seeking the end of indivision when the property to be partitioned in kind is agricultural land. The appellant argues that the judgment under appeal creates a dual regime in cases involving partition in kind: that which is consensual, and that which is judicial. The first requires the appellant’s authorization, whereas the second does not.

To resolve the issue, the judge should have first analyzed the wording of the definition of “alienation” in the Act respecting the preservation of agricultural land and agricultural activities, which includes the term “partition”. Subsequently, in subsections (a), (b) and (c), the definition excludes transmission owing to death, forced sale, and taking in payment. Two conclusions must therefore follow, the second confirming the first.

First, the legislature does not characterize partition as either consensual or judicial. What is more, the juridical acts excluded by subsections (a), (b) and (c) are not consensual contracts. If the definition of the term “alienation” concerned solely consensual operations, these exclusions would have been pointless. But the legislature does not speak in vain. Therefore, according to the very language in the definition of “alienation”, judicial partition in kind is alienation within the meaning of the Act.

Second, an interpretation focused on the object of the Act, which is to ensure a lasting territorial basis for the practice of agriculture, suggests that the legislature did not wish to draw a distinction between the two types of partition or, in other words, to create a dual regime.

Moreover, the terms “partition” and “declaratory act of ownership” currently included in the definition of the term “alienation” were not there when the statute was assented to in 1978. The legislature added them in 1982, in response to the judgment of the Superior Court in Ouellet c. P.G. du Québec (Sup. Ct., 1980-07-11), 200-05-000747-803, in which the Court considered whether an amicable partition was a conveyance or a declaratory act of ownership of property. The legislature decided to settle the matter by making two amendments: first, it included the notion of “declaratory act” in the definition of “alienation”, and second, it added the term “partition” to the enumeration that follows. Thus, the shortcoming the applicant Ouellet had made apparent, that of the dual regime, was resolved. These amendments dispelled any doubt as to whether partition in kind, whether judicial or consensual, is alienation within the meaning of the Act.

It therefore must be found that the partition sought should have been authorized by the appellant before the originating application was filed before the clerk of the Superior Court. Ordinary courts may not usurp the jurisdiction the legislature has conferred on the appellant to authorize alienation in agricultural zones that would otherwise be prohibited by law.

Legislation interpreted: section 1(3) of the Act respecting the preservation of agricultural land and agricultural activities

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