In the decision in WM Québec inc. c. Ville de Drummondville (2024 QCCA 4) handed down on January 9, 2024, the Court of Appeal provides important clarifications on the power of courts to intervene when an aggrieved owner believes that a by-law adopted by a local municipality does not comply with a planning program or a land use planning and development plan ("LUPDP"), the planning tools used by higher levels of government.
In this case, the company Waste Management ("WM") argued that a municipal by-law adopted by the Ville de Drummondville, under which the specific use of sanitary landfill was not allowed in an area designated in the LUPDP as an area for residual materials management, was illegal as it was non-compliant with the LUPDP in that it thwarted the LUPDP's objective to allow the expansion of an engineered landfill.
At trial, the Superior Court held that it did not have the power to intervene on a question of conformity by applying the reasoning used by the Court of Appeal in the 1988 decision Pires c. Charlesbourg. Moreover, it added that even if it did have such power, the Ville de Drummondville's by-law was consistent with the LUPDP in that the zoning by-law did not necessarily thwart the objectives of the LUPDP. Both of these findings were overturned on appeal.
Distinction Between the Concepts of Legality and Conformity
To fully understand the significance of this decision, it is important to briefly review the distinction between the concepts of "legality" and "conformity" in municipal law.
A by-law will be deemed illegal where a local municipality did not have the power to adopt it. It will also be deemed illegal where it is adopted in bad faith, in an abusive manner or for illicit purposes. These conditions speak to the validity of any regulatory act, and arise from the application of general administrative law principles. There is no question that the Superior Court can intervene where a by-law is deemed illegal.
The concept of conformity refers to the compliance of a by-law adopted by a local municipality with planning programs and LUPDPs, or tools used by higher levels of municipal government, which are themselves subject to similar obligations of conformity with government or metropolitan policy directions. The Act respecting land use planning and development (the "ALUPD") provides for a mechanism whereby the general policy directions imposed by higher levels of government eventually become local regulatory standards following successive amendments to regulatory instruments through a "concordance" process. For example, such standards may consist of obligations to densify certain sectors or change permitted uses. This conformity obligation also applies to one-off amendments to municipal by-laws, which must not be inconsistent with the provisions of an LUPDP.
Under normal circumstances, the conformity review mechanism involves a regional county municipality's ("RCM") analysis of a zoning by-law, which, if it deems the by-law to be compliant with the policy directions of its LUPDP, will issue a certificate of conformity allowing the by-law to come into force. However, because this is a political process, local realities can lead to the tolerance of non-conformities, for example where the prefect of an RCM is also the mayor of the municipality that adopted the standard that contravenes the LUPDP, as was the case in this matter brought before the Court of Appeal.
Pires Precedent Set Aside by the Court of Appeal
Since 1988, a long line of jurisprudence, supported by doctrine, has affirmed that the Superior Court cannot intervene to review the validity of a zoning by-law on the basis of non-conformity. This follows a 1988 Court of Appeal ruling in the Pires case, which determined that the Superior Court could not intervene in matters of "local" conformity, or in the analysis of the compatibility of a municipality's zoning by-law with its planning program, because the legislature had entrusted this review function to a specialized body, the Commission municipale du Québec (the "CMQ"). In this case, the litigants had failed to avail themselves of the recourse before the CMQ within the prescribed time limit. The reasoning behind the Pires decision was then applied in cases of "regional" conformity, or of compatibility between a zoning by-law and an RCM's LUPDP.
Court of Appeal's Ruling in Light of Such Clarifications
Without calling into question the principles laid down in Pires in a context of local conformity where a recourse before the CMQ exists, the Court of Appeal dismisses any application of such reasoning when it comes to regional conformity.
In fact, except in the rare cases involving city administrations and RCMs, litigants cannot ask the CMQ to verify the conformity of a zoning by-law with a municipality's LUPDP (regional conformity). Only a local municipality may do so where an RCM refuses to certify a by-law after its adoption, such that if the RCM tolerates a violation of the LUPDP, the litigant aggrieved by the by-law has no recourse other than to institute proceedings before the Superior Court:
[101] [translation] It stands to reason that a litigant who argues that their rights have been prejudiced by the imposition of a regulatory standard that is not compliant with the planning program or the objectives of the development plan or a provision of its complementary document, and who does not avail themselves of the conformity contestation mechanism made available to them by law (where the law provides for such a mechanism), as was the case in Pires, could expect the Superior Court to refuse to review such conformity, given that another statutory recourse was available for such purpose and the litigant did not avail themselves of it. In this case, the litigant is in a position no different from that of a person whom the legislature has deprived of the right to contest an administrative decision before the courts by assigning the task of review to an administrative decision-maker, such as an arbitrator. If the litigant does not exercise the remedy provided by law, save for exceptions, they will not be able to apply for judicial review of the decision.
[102] [translation] If, on the contrary, that litigant avails themselves of their right to contest this administrative decision with the administrative decision-maker to whom the legislature has entrusted the adjudicative function, it is indisputable that they will be entitled, once their rights and recourses of administrative review and appeal have been exhausted, to petition the Superior Court to exercise its power of judicial review.
[103] [translation] In my opinion, the same is true when the law does not grant the litigant a specific means of contesting or seeking the review of a by-law where the law imposes an obligation on the municipality to make the by-law compliant with the objectives of the development plan and the provisions of its complementary document, as well as the certificate issued by the RCM attesting to conformity.
[104] [translation] In this case, that is precisely the situation in which WM finds itself as concerns the conformity of the by-laws and the certificate of conformity. Unlike the situation in Pires, WM has no recourse where by-laws and the certificate of conformity is involved. It cannot therefore be blamed for not having applied to the CMQ for a binding opinion, because the ALUPD grants this right only to a given municipality when it wants to contest the resolution of an RCM refusing to certify the conformity of its by-laws with the development plan or if it fails to rule within the prescribed time limit. Section 137.15 of the ALUPD, which provides that once the RCM has issued a certificate of conformity, the by-law "is deemed to be in conformity with the objectives of the RCM plan and with the provisions of the complementary document," reveals the legislature's intention to ensure the stability both of the by-law and of the permits and authorizations issued thereunder. However, if the decision was taken for a manifestly misguided purpose, in bad faith or for any other illegal reason, in other words if the decision violates the fundamental principles of law, that intention will not be fulfilled and the regulation and the certificate of conformity may be annulled.
[105] [translation] The trial judge wrote that "[translation] [had] the city administration and the RCM acted in bad faith, in an abusive manner or for illicit purposes, the Court could intervene, but this means cannot be used to circumvent the irrebuttable presumption of conformity" [70]. I respectfully disagree with this assertion. In some cases, depending on the circumstances, the review of the legality of a by-law may, on the contrary, inevitably be done by considering whether it is compliant with the objectives of the development plan and the provisions of its complementary document. This may be the case, for example, in order to review the legality of the decision in the face of allegations that it was made in bad faith or for a manifestly misguided purpose. Obviously, in such a case, the burden on the litigant will be greater than if it were simply a matter of verifying the compliance of the by-law with the development plan (as the CMQ would do) or of an appeal, given the standard of review that must be applied.
Significance of the Ruling
The ruling is likely to have significant repercussions on the latitude that local municipalities have in their ability to interpret the obligations they face to amend their local by-laws to account for policy directions from upper levels of municipal government, especially where densification is involved.
In a context where local municipalities may be reluctant to comply with regional or metropolitan policy directions, in particular in terms of densification, the ability of owners to apply to the courts to ensure compliance with new policy directions is paramount and will make it possible to contest abuses.
In sum, landowners dealing with a by-law that is not in conformity with a higher-level planning tool will be able to rely on the principles enunciated in this decision.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
