Review On Judicial Discretion In Matters Of Cessation Of Non-Conforming Use

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The Act respecting land use planning and development (hereafter the “Act”) establishes the land use planning and urban planning regime in the province of Québec and confirms, in this regard, the responsibilities of the government, metropolitan communities, regional county municipalities and local municipalities.

Articles 227 and following of the Act grant the Superior Court with the authority to issue orders to put an end to land uses which do not conform to municipal planning regulations.

Furthermore, it is important to emphasize the fact that no one can prescribe, based on the passage of time, the right to a use that contravenes a zoning by-law. Thus, the mere passage of time is not sufficient to defeat the application made by a municipality under these provisions subject, however, to the protection that could arise from acquired rights.

In 2003, in the case of Ville de Montréal v. Chapdelaine1, the Court of Appeal of Québec established the principles that should guide the discretion granted to judges of the Superior Court in matters of such orders.

In this case, the City of Montréal was seeking an order to end a non-conforming residential use (i.e., a multi-unit building located in an exclusively commercial area), which non-conforming use had been going on for 34 years without any intervention by the municipality.

The Court of Appeal stressed that the judicial discretion attached to article 227 of the Act, by which a court could dismiss an action brought by a municipality despite the presence of a non-conforming situation, must be exercised in the presence of exceptional circumstances.

The Court of Appeal thus developed three categories of criteria to be considered in the dismissal of an action taken under article 227 of the Act:

  • The actions of the municipality (such as an unreasonable and inexcusable delay before the institution of the recourse or the collection of taxes or the issuance of permits);
  • The actions of the person in violation of the regulation (such as their diligence and their lack of knowledge of the violation); and
  • The effects of maintaining the non-conforming use (including the interest of justice, the exceptional circumstances of the situation, the consequences for the affected municipal area and public health and safety, the environment and the general well-being of the municipality).

Considering the above-mentioned elements, the Court judged that it was in the interest of justice that the City’s action be dismissed.

Although it is still frequently referred to the Chapdelaine case in defence to recourses taken by municipalities under article 227 of the Act, the case law subsequent to this judgment recalled the particular and exceptional nature of the circumstances that may justify the exercise of judicial discretion to refuse to grant a cessation order under the Act. Following this line of case law, the Court of Appeal of Québec stressed the need for the existence of good faith in those who request that this power be exercised in their favour2. Analysis of the facts is therefore a determining factor in the decision of the courts whether to exercise, or not, the judicial discretion resulting from article 227 of the Act.

By Mathieu Tremblay

1 Montréal (Ville) v. Chapdelaine, [2003] R.J.Q. 1447 (C.A.);

2 Municipalité de Saint-Gédéon v. Comité plage St-Jude inc., 2018 QCCA 143.