Mainville, Sansfaçon, Baudouin

Appeal from a judgment of the Superior Court granting an application for judicial review. Allowed.

In the first instance, the respondent municipality argued that the Declaration of a special planning zone to permit the development and the continued operation of an engineered landfill on certain lots situated in the territory of Ville de Drummondville (OC 1235-2021 dated 15-09-2021, (2021) 153 G.O. II 3752) does not comply with its enabling statute, the Act respecting land use planning and development.

The trial judge quashed the order-in-council. First, the perimeter of the special planning zone (SPZ) is not properly defined and was vastly superior to the area required for the purpose of the SPZ, which proved that the decision to create it was unreasonable and that it did not comply with the Act respecting land use planning and development (CQLR, c. A-19.1) and had been made in the pursuit of an improper objective.  Second, the order-in-council did not include a term for it.

The scope of the order-in-council does not exceed the objectives set out in the Act respecting land use planning and development. Sections 158 et seq. of the law authorize the government to declare any part of the territory of Quebec to be a “special planning zone” for the purpose of solving a development or environmental problem. The law does not state that the problem for which a solution is sought must be located entirely or in part within the perimeter of the SPZ. Moreover, there is nothing in the law that prevents the creation of a SPZ to solve a real problem, even if its impact has not yet materialized. That said, in her reasons, the judge interpreted the powers granted under ss. 158 et seq. of the law restrictively, thereby committing an error of law. Indeed, the law confers great latitude on the government when, in its opinion, the environmental problem it seeks to solve presents a high degree of seriousness. In this case, the law allowed it to determine the perimeter of the SPZ it considered useful to achieve its objective and there is nothing in the law that limits it to the perimeter required for the purposes of the already authorized expansion.

As for the fact that the order-in-council does not include a term, the judge committed three errors in law. First, the claim that the government used urgency as the reason for its intervention is inaccurate: while it is true that there was urgency to act at the time, the government chose to acknowledge only the seriousness of the problem as a ground of intervention, as clearly appears from the order-in-council itself. Second, nowhere in the order-in-council, be it in its whereases or in the objectives stated therein, is there any mention of the fact that creating the SPZ is only a short-term or even temporary solution to the problem it was then facing. Third, by implying that the government must try to find a long-term alternative to the problem that will take into account measures, solutions, or requirements that will ensure better landfill management as well as the various regional contexts rather than creating a SPZ to resolve the serious environmental problem observed, the judge interfered in the decision-making process the legislature entrusted to government, which she could not do.

Because the order-in-council complies with the purpose and scope of the legislative regime under which it was enacted, it is valid.

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