Disguised Expropriation – Groundbreaking judgment in the case of Saint-Bruno-de-Montarville’s boisé des Hirondelles

Written by Jean-Daniel Lamy and Jonathan M. Fecteau

Jean Daniel Lamy and Jonathan Fecteau represented Sommet Prestige Canada Inc. and Propriétés Sommet Prestige Inc. as part of a dispute opposing them for several years against the City Saint-Bruno-de-Montarville.

The clients initiated legal action following the implementation of very restrictive tree cutting standards with respect to their property by the City of Saint-Bruno-de-Montarville. These standards have prevented the carrying out of a housing development project which had already been authorized by the municipality, but also any other reasonable use of their property.

On March 7, 2023, the Superior Court decided in this matter, thus delivering a very important – and greatly anticipated – verdict regarding disguised expropriation. Through this judgment, the Superior Court ruled in favor of the clients, recognizing their right to fair and reasonable compensation as a result of the disguised expropriation of their property in the City of Saint-Bruno-de-Montarville.

This decision is based on the following principles in particular:

Choice of recourse: the two potential remedies as regards disguised expropriation, namely the nullity appeal and claim for compensation, are alternative.

The burden of proof regarding disguised expropriation: the Superior Court reiterates the principle established by the Court of Appeal in the Dupras case about the fact that a municipality’s good or bad faith, or the finding of misconduct, are in no way relevant when determining the presence of disguised expropriation. It is the impact of the contested regulations that should be analyzed.

Enabling authority: paragraph 16 of section 113 of the Act respecting land use planning and development does not authorize Québec’s cities and municipalities to expropriate a private owner without providing them with fair and pre-established compensation, and this is the case whether the regulation considered to be expropriating is or isn’t compliant with this enabling provision. Only a clear legislative authorization to override the rule issued by section 952 of the Civil Code of Québec would allow such an infringement of the fundamental right that is the ownership right in Québec and Canada.

In short, this is a major victory for the rights of private owners in the field of disguised expropriation, as they are too often required to multiply long and costly judicial proceedings to get what they should have received in the first place, and from public bodies, it should be recalled. Let us hope this decision will finally help create a power shift in this area, which is unfortunately long overdue.