Cotnam, Sansfaçon, Baudouin

Appeal from a judgment of the Superior Court quashing a resolution granting a minor exemption and ordering the demolition of an immovable. Allowed.

In May 2013, the impleaded party Molla obtained a construction permit to build a residence. In September 2013, a representative from the appellant city noticed that the permit had been granted in violation of the rule on insertion set out in article 116 of zoning by-law 502-2005. On October 28, 2013, the planning advisory committee (PAC) recommended to the municipal council that it grant a minor exemption to allow the reduction of the minimum front setback from 15.67 to 7 metres in order to regularize the construction of this residence. On July 8, 2014, the municipal council adopted a resolution granting this minor exemption. The respondents, who are Molla's neighbours, filed an application for judicial review of this resolution, accompanied by a request for the demolition of the immovable.  

The second paragraph of s. 145.4 of the Act respecting land use planning and development (CQLR, c. A-19.1) states that: "The exemption may be granted only if the application of the by-law causes a serious prejudice to the person who applied for the exemption." The trial judge interpreted this criterion as creating an obligation to ensure that the exemption sought causes a serious prejudice to the person who applied for the exemption, which is not what the provision provides. This error is determinative because the judge used it to support his conclusion that the appellant had chosen the minor exemption to avoid a potential action in damages for not having analyzed the damage that granting the exemption would cause Molla.

However, nothing in the Act respecting land use planning and development provides that an official written study is required. It may be entirely appropriate, even common, that the criteria for granting a minor exemption are analyzed only after the request is made, as in this case. Furthermore, the obligation to take into account the criteria set out in the Act falls on elected municipal officers who, at the end of the day, decide if it will be granted, and not on municipal officers or PAC members, who merely present their recommendations to the elected officers.

Thus, the judge could not limit his analysis of the appellant's intentions to the actions of its employees at the first stage of the file to find, as he did, that the faults committed at the time vitiated the entire process. Instead, he had to situate himself at the time of the vote to determine if the elected officers' decision was based on incomplete or biased work. In this respect, the evidence that the judge did not analyze establishes that on the day of the vote, the members of the municipal council were entirely aware of the criteria for granting a minor exemption, and of the complaints of the owners of the neighbouring immovables.

As for the second paragraph of s. 145.4 of the Act, the paragraph concerning interference with the neighbours' enjoyment of their right of ownership, the judge exceeded the limits of the power to intervene granted by the standard of judicial review by substituting himself for the elected officers to whom the legislature entrusted the power to assess its significance.

Legislation interpreted: section 145.4 of the Act respecting land use planning and development

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