Morissette, Moore, Lavallée
Appeal from a judgment of the Superior Court dismissing an action based on the Act respecting the lands in the domain of the State (CQLR, c. T-8.1). Allowed.
At trial, the appellant asked that the respondent be ordered to abandon and restore the land in the domain of the State it had been managing. The respondent left tons of debris on the premises following a contract it carried out for the Ministère des Transports du Québec.
The appellant argues that the judge erred in law by dismissing its action because he should have only verified the existence of the conditions to apply s. 61 of the Act respecting the lands in the domain of the State, which have been established by consistent case law, and maintains that the judge relied on irrelevant considerations. The appellant is of the view that the judge erred by finding that its refusal to authorize the respondent to use the land was [translation] “not legitimate” and that it was not an unlawful occupation of the land.
In light of Québec (Procureur général) c. Bérubé (C.A. 2012-08-23), 2012 QCCA 1496, SOQUIJ AZ-50889721, 2012EXP-3207, J.E. 2012-1715, the leading case on the issue, for a manager of lands in the domain of the State bringing an action in Superior Court to successfully regain possession of a parcel of its unlawfully occupied land, it must demonstrate that the defendant is “unlawfully in possession” of these premises. To do so, three elements must be proved: (1) the premises are indeed part of the public domain; (2) the person concerned by the request to dispossess occupies these premises; and (3) this person [translation] “is not authorized to occupy it”.
Furthermore, the case has added that the first “may” in section 61 of the Act respecting the lands in the domain of the State is [translation] “attributive of judicial jurisdiction” and should be read as a “must”. Thus, the use of the word “unlawfully” in this provision [translation] “confers no discretion, in equity, to the judge hearing an action pursuant to section 60” (Québec (Procureur général) c. Tremblay (Sup. Ct. 1995-10-17), SOQUIJ AZ-51177497 at 4 of the judgment).
As soon as a judge notes that all three conditions for the application are met, he or she must order that the land be abandoned. As for the second “may”, concerning restoring the premises, it grants discretionary power to the Superior Court, which must then assess the manager’s behaviour in concreto to see whether there was negligence with respect to the person whose eviction is sought.
While the word “unlawfully” used in section 61 of the Act refers to the idea of illegal occupation or use of land in the domain of the State, the trial judge did not limit it to this strict issue, but instead examined it in a broader sense as meaning [translation] “not legitimate”. In addition, he approached the case as an application for judicial review even though the respondent had not filed any official request for authorization to use the land that could have been the subject of such review. Acting as a reviewing judge of an administrative decision that was never contested at law, the judge erred in law by taking into account irrelevant considerations and accepting certain facts that were not adduced into evidence at trial, thereby committing certain palpable and overriding errors of fact.
There is no doubt that the respondent used the land, which is part of the lands in the domain of the State, to permanently dispose of the debris without authorization. The three applicable criteria have been met, and the judge had no discretionary power to refuse the appellant’s request for dispossession.
Given that the decision to order the premises restored must be taken by assessing the behaviour of the person managing the land and that, in this case, the appellant has not proved negligence in the management of this file, it is also appropriate to allow the request to restore the premises.
Legislation interpreted: sections 60 and 61 of the Act respecting the lands in the domain of the State.
Text of the decision: Http://citoyens.soquij.qc.ca