Mainville, Sansfaçon, Baudouin

Appeal from a judgment of the Superior Court dismissing two applications for judicial review. Allowed.

In 2010, the appellant took steps to expand the engineered landfill site (ELS) it operates to put into operation phases 3A and 3B. Following the adoption of a revised land use and development plan (RUDP) by the Regional County Municipality (RCM) of Drummondville, the city adopted concordance by-laws. These by-laws created a zone, which included the lands for the possible phase 3B, where ELS activities were prohibited.

At trial, the appellant sought to cancel the concordance by-laws, the RCM resolutions, and the certificates attesting the conformity of these by-laws with the RUDP, as well as to adopt a by-law in conformity with the RUDP and the Residual materials management plan.

The judge relied on Pires c. Charlesbourg (Corp. municipale de), (C.A., 1988-04-27), SOQUIJ AZ-88011588, J.E. 88-708, [1988] R.J.Q. 1252, [1988] R.D.I. 329 to find that the Superior Court lacked jurisdiction to review the conformity of a concordance by-law. Yet, contrary to the situation in that case, the appellant has no other recourse against the by-laws or the certificate of conformity. The appellant therefore cannot be criticized for not presenting a request for a binding assessment to the Commission municipale du Québec because the Act respecting land use planning and development (CQLR c A-19.1), only grants this right to the municipality when it wishes to contest an  RCM resolution that refuses to attest to the conformity of its by-laws with the RUDP or fails to rule within the prescribed delay to do so. Section 137.15 of the Act, which provides that, once a certificate of conformity is issued by the RCM, the by-law, which is “deemed to be in conformity with the objectives of the RCM plan and with the provisions of the complementary document”, must then be understood as being indicative of the legislature’s intention to ensure the stability of both the by-law and the permits and authorizations issued pursuant to it. However, they may be cancelled if the decision was made for a clearly colourable purpose, in bad faith, or for any other illegal reason; in other words, if the decision violates the fundamental principles of law.

In this case, the RUDP did not allow the "Residual materials management" use area to be divided so as to allow the dominant function of [translation] "Engineered landfill site (ELS) for Drummondville: The equipment, infrastructure, and landfill and ultimate waste  elimination activities” on only 40% of its area and to allow on 60% of this site only activities that are in no way complementary  -- that is, agriculture and forestry --, and, especially, that have the primary effect of compromising and rendering null and void one of the RUDP’s major objectives that the equipment, infrastructure, and landfill and ultimate waste elimination activities be authorized by local regulations over the entire use area. It is also necessary to keep in mind that the RUDP not only determines as an objective the presence of an ELS for this whole area, but it prohibits this use everywhere else, including on the territories of all the other municipalities of the RCM.

Thus, although the RUDP gives the municipalities great latitude in coming up with means to achieve the development objectives it sets out, in this case, the city adopted a by-law that thwarts one of its fundamental objectives. The concordance by-law, because it compromises the RUDP and renders it null and void, is not in conformity with it. Another non-conformity arises from the fact that the city gave the RUDP a distorted meaning for the sole purpose of achieving its primary objective which was to completely prohibit any ELS use in the area in question, except where the activities had already been authorized by the government, so as to prevent any future expansion. The illegality of the city's actions leads to the cancelation of the RCM's resolutions and its certificates of conformity.

Legislation interpreted: s. 137.15 of the Act respecting land use planning and development

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