How to Appeal a Municipal Decision

This article was co-written with Henri Cant.

Whether it is restrictions on the use of property, guidelines on the use of public space or the imposing of fees, municipal by-laws can have a major impact on the operation of a business or the implementation of a business plan.

Despite their considerable discretionary powers, municipalities don’t have free rein and their decisions must comply with the law. There are a number of remedies available to those who feel they’ve been wronged: it is important to know what they are and to act quickly.

Understanding Municipal Powers

Municipalities are not a constitutionally protected order of government—they’re said to be “creatures of the provinces,” having only the powers granted to them by provincial legislation.

Municipalities are mainly governed by:

• The Cities and Towns Act;
• The Municipal Code of Québec;
• The Act respecting land use planning and development; and
• The Act respecting municipal taxation.

These laws grant municipalities areas of jurisdiction that are limited by their scope and by various procedural requirements.

These statutory powers may only be exercised within the stipulated parameters, and any person can challenge the legality of their exercise by appealing to the courts, either by way of an application for annulment or an application for judicial review.

• Application for Annulment

The application for annulment seeks to set aside any act of a municipality (Municipal Code of Québec. s. 689; Cities and Towns Act, s. 397) and, in some cases, to obtain compensation for the prejudice caused. The court will examine the act’s conformity with the regulation-making authority and verify compliance with the procedure required for its lawful adoption[1]. When this application is based on the omission of formalities, it must result in serious prejudice or the invalidity of the act in order to be allowable (Municipal Code of Québec, s. 23; Cities and Towns Act, s. 11). This recourse must absolutely be exercised within three months of the passing of the act in question, otherwise it will be denied (Municipal Code Québec, s. 692; Cities and Towns Act, s. 407).

• Application for Judicial Review

An application for judicial review, on the other hand, is aimed at controlling the exercise of public powers. If convinced, the court will declare the contested decision null and void. The municipality may, however, amend the decision to bring it in line with the law. In making its decision on the application for judicial review, the court examines the “reasonableness” of the municipality’s decision, that is, first, whether the reasoning behind it is internally coherent and, second, whether it is defensible in respect of the law and the facts (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), [2019] 4 SCR 653; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 (CanLII), [2012] 1 SCR 5). The application for judicial review must be filed “within a reasonable time” from the date of the decision under review, which is generally 30 days (Code of Civil Procedure, s. 529).

A Fair and Equitable Final Decision

In addition to ensuring that their decisions comply with the regulation-making power, municipalities must act in a fair and equitable manner (Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817). This duty is demanding when the municipality applies rules, but much less so when it adopts them. So, depending on the case, people who are significantly affected by a decision have the right to be heard before it is made. What’s more, the official(s) making the decision must remain impartial.

An application for judicial review can also overturn a municipal decision when the municipality fails to act fairly and equitably in the circumstances. However, this decision can be repeated in compliance with these requirements. Once again, this request must be made “within a reasonable time”—generally 30 days.

Expropriation and Disguised Expropriation: Municipal Obligations

Municipal decisions often have an impact on the exercise of property rights. Sometimes a municipal by-law is so restrictive that it prevents any reasonable use of a property. Expropriation then occurs, and the municipality must acquire the land according to the procedure set out in the Expropriation Act. The expropriated party then has the right to receive full and fair compensation for the loss they have suffered, as well as for the disturbance and inconvenience caused.

When a municipal by-law has the effect of preventing any reasonable use of a property and a municipality does not proceed with expropriation, it is referred to as disguised expropriation. The owner may then apply to the Superior Court to force expropriation at the municipality’s expense. This recourse often accompanies an application to quash a by-law.

Want to learn more about disguised expropriation? Read our articles on the impact of Bill 22 and Bill 39 on expropriation in Québec and nine principles surrounding Bill 39 amending the Act respecting land use planning and development with regard to disguised expropriation.

Civil Liability

When a municipality commits a fault, it must provide compensation for the damage it has caused. A municipality isn’t committing a fault when it exercises a public power, as long as it acts in good faith. However, it is not immune when acting in contractual matters or when implementing its policies. For example, the municipality may be held responsible for the carelessness of the lifeguards it employs, but it cannot be held liable for damage caused by its regulations.

The judicial review process, which must be initiated, is also designed to ensure that procedural fairness is respected.

Constitutional Checks and Balances

On rare occasions, a municipality may make a decision that infringes on federal jurisdiction. It’s important to remember that municipalities fall under provincial jurisdiction, and as such cannot usurp federal powers—including telecommunications services, postal services, defence, nuclear energy, shipping, fishing, banks, criminal law, prisons, agriculture, and immigration.

Most municipal infringements of these powers are justified because they’re minor. Sometimes, however, municipalities encroach on federal jurisdiction, in which case the Superior Court can be asked to declare the act invalid. However, these remedies are particularly complex and difficult to implement.

Conclusion

Municipalities may make decisions that have a profound impact on everyday life and development projects, but they don’t have free rein, and sometimes they exceed their powers or incur liability. A wide range of remedies are available to those wishing to exercise their rights.

Have a Grievance With a Municipal Decision?

Contact our Municipal Law team, who will be happy to advise you.

[1] Jurisclasseur.