Hamilton, Sansfaçon, Bachand

Appeal from a judgment of the Superior Court dismissing an appeal from a guilty verdict. Allowed.

The appellant operates a factory located on the territory of the Ville de Montréal. It was convicted of various violations pertaining to air purification under by-law 90, which was adopted by the Communauté urbaine de Montréal before the creation of the Communauté métropolitaine de Montréal (CMM). The appellant alleges that city employees did not have the power to request information in connection with its odour emissions or require that it install monitoring devices or structures to take samples of pollutants. According to the appellant, the CMM could delegate the application of by-law 90 through a municipal by-law but had to do so directly.  

By-law 2001-10 respecting atmospheric emissions and the delegation of its enforcement clearly states that the enforcement of by-law 90 may be delegated, but only in accordance with what would be determined by agreement between the CMM and the Ville, which had not yet been done when by-law 2001-10 was adopted. With this wording, the CMM’s council delegated to a body it did not identify, but that ended up being its executive committee, the power to negotiate the content of the agreement with the Ville by which the CMM would delegate in whole or in part its power to apply by-law 90. Accordingly, the CMM’s council, which under section 159.1 of the Act respecting the Communauté Métropolitaine de Montréal (CQLR, c. C-37.01) was the only body with the power to delegate all or part of its jurisdiction to another municipality in its territory, applied s. 3 of by-law 2001-10 and abdicated its jurisdiction to determine the scope of the delegation by entrusting this decision to another authority.

The modern rule of interpretation that the provisions of a by-law must be read as a whole is of no help to the CMM. On the contrary, a review of the circumstances that led to the adoption of by-law 2001-10 supports the appellant’s position that the CMM’s council, even if it wanted to delegate all or part of the power to apply by-law 2001-10 to the Ville, also wanted to delegate to a third party the power to set the scope of this delegation in an agreement following negotiations with the Ville.

The earlier proceedings committed the same error of law by making the validity of by-law 2001-10, adopted in November 2001, depend on the content of the agreement confirmed in February 2004. First, this by-law could not predict that the content of the delegation would be established later by a third party or even by another branch of the body. Second, the delegation at issue was made in camera, without meeting the procedural requirements associated with a by-law. Moreover, because the protocol was drafted two years later, it is not contemporaneous with the by-law. Furthermore, it was not adopted by the CMM’s council but by the executive committee and therefore cannot represent legislative intent. What is more, the Minister’s approval of by-law 2001-10 does not make it legal. Finally, the presumption of validity of by-laws is overturned by the application of the modern principle and the review of legislative intent.

Section 3 of by-law 2001-10 is therefore illegal and void as against the appellant, which must be acquitted of the charges against it.

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