Québec water case law 21: The Court of Appeal upholds the validity of municipal by-laws for riparian zone protection

(BY HUGO)

In Wallot v. Ville de Québec (in French), the Court of Appeal of Québec sits on appeal of a Superior Court judgement discussed in a previous post where the facts were thus summarised:

- Lake St. Charles is the source of 50% of the drinking water provided by the defendant municipality Québec City, serving close to 300 000 persons;

- During the summers of 2006 and 2007, toxic cyanobacteria proliferate in the Lake due to phosphate inputs from fertiliser run-offs, septic tank leakage, etc;

- Municipal by-laws are adopted by Québec City in June 2008 to counter this phenomenon by imposing the naturalisation and reforestation of heavily modified riparian areas on a 10 to 15 meters strip of land around the Lake;

- The plaintiffs and appellants are owners of riparian properties around Lake St. Charles. They contest the validity of the by-laws to avoid being forced to return part of their properties to a more natural state.

The Superior Court rejects the plaintiffs’ arguments and concludes that the municipality made reasonable use of its regulatory powers.

The appeal raises the following questions:

1 - Did the Superior Court err in concluding that the defendant municipality could adopt, based on section 19 of the Municipal Powers Act (MPA), the by-laws attacked?

2 - If the defendant municipality had the regulatory power to adopt the by-laws, did the Superior Court err in concluding that the defendant municipality did not exceed the power conferred by the MPA in doing so?

To answer the first question, the Court of Appeal establishes the breadth of the municipal regulatory power under sections 4.4 and 19 MPA by reference to the right to a healthy environment at section 19.2 of the Environment Quality Act, to the Protection Policy for Lakeshores, Riverbanks, Littoral Zones and Floodplains, to the Sustainable Development Act, and to the Act to affirm the Collective Nature of Water Resources and Provide for Increased Water Resource Protection. In this legislative context and given section 2 MPA, the Court concludes that the attacked municipal by-laws correspond to the regulatory powers conferred by the MPA.

With respect to the second question, the Court of Appeal examines whether the municipal by-laws impose constraints on the plaintiffs’ enjoyment of their properties that are prohibitive enough to constitute disguised expropriation. This is mostly a factual question and the Superior Court’s decision can only be quashed if it contains a manifest and dominant mistake, which is not the case. The by-laws are not equivalent to an absolute negation of the plaintiffs’ property rights or a positive confiscation of the properties. The plaintiffs’ rights over their properties remain exclusive. The plaintiffs can continue enjoying their property for residential purposes. Hence, the Court rejects the appeal.

Water case law in Québec 20: Municipal liability further to floods

(BY HUGO)

Since the beginning of May, the flow of an emissary of Lake Champlain, the Richelieu River, is near or at record level, and a large area South of Montréal is flooded (see articles here and here from Le Devoir - in French - and some pics here).

In this context, the recent judgement from the Superior Court in Équipements ÉMU ltée v. Québec (Ville de) (in French), is interesting. In this case, the plaintiff owner of two buildings located on the territory of the defendant municipality seeks compensation for damages resulting from floods that occurred in 2003, 2004 and 2005. The buildings damaged by the floods were built in 1987 and 1996.

The plaintiff argues that the defendant’s rainwater drainage system is inadequate and outmoded. The plaintiff also alleges that the defendant failed to take into account a series of professional recommendations made in 1973 by consultant engineers, in 1990 by the Ministry of the Environment, and in 1993 by other consultant engineers. These recommendations were to the effect that urban development should be curtailed or prohibited in the flood plain where the buildings are located, that the drainage system should be adapted to deal with the runoff modifications resulting from increased urbanisation, and that the river running through the flooded area should be maintained according to certain standards.

The defendant essentially counters that the damages result from a series of forces majeures – see section 1470 of the Civil Code of Québec (CCQ).

The plaintiff’s recourse is based on extra-contractual liability and relies on the presumption established by 1465 CCQ. According to this presumption, the defendant’s fault does not have to be proven by the plaintiff. Under section 1465 CCQ, a person entrusted with the custody of a thing is liable to reparation for injury resulting from the autonomous act of the thing, unless he proves that he is not at fault.

The Court finds that the damages were caused by floods resulting from backflow in the municipal drainage system, which includes the sewers and the river itself. The Court also finds that the municipality is custodian of the drainage system. Hence the presumption of section 1465 CCQ applies. Given that the municipality does not establish its absence of fault, and that the exemption of force majeure is refused by the Court, the municipality is held liable. Damages are not dealt with in this judgement.

The text of the judgement is long and the evidence is not summarised. A number of points are worth highlighting:

- This is a test case for the floods that occurred in the relevant area in 2003, 2004 and 2005;

- The floods that occurred in 2003 and 2004 were caused by accumulations of debris and sedimentation. The municipality failed to clear the river adequately;

- The floods that occurred in 2005 were the result of 100 year recurrence rain events. The rules of the art establish that the river, as part of the municipal drainage system, should be maintained in a condition where it is able to discharge 100 year recurrence rain events;

- The capacity of the sewers is not significantly discussed, but they appear to have been designed in accordance with the applicable rules of the art. Their discharge capacity is at or under 15 year recurrence rain events (see §§ 181 and 344);

- The judgement provides a very interesting review of recent case law illustrating the principles applicable to municipal liability for flooding. In particular, a case is referred to where the Court acknowledges the increase in extreme climatic events, the end of climatic stationarity and the irrelevance of statistical occurrence tables;

- Given the ratio of the Court’s conclusions, the initial emphasis on the municipality’s decision not to follow the various recommendations to curtail or prohibit development in the floodplain appears somewhat immaterial. Nevertheless, this type of municipal decisions on land planning and use might possibly have an impact on municipal liability when the consequences of the decisions are entirely foreeable: see part 5 of François Fontaine, «L'arrêt Ciment St Laurent: les principes sont-ils coulés dans le béton?» (here- in French).

Of note is the fact that authorisation for appeal was refused by the Court of Appeal.

Québec water case law 19: interpreting section 56 of the Municipal Powers Act

(BY HUGO)

In Tousignant v. Lac-Beauport (Municipalité de) (in French), the appellant, owner of a defective sceptic installation receiving waste water from his residence, was found by the Municipal Court in first instance to contravene to the Regulation respecting waste water disposal systems for isolated dwellings and was ordered to reconstruct the installation in conformity with the regulatory requirements.

Before the Superior Court, the appellant contests the validity of the injunctive orders from the Municipal Court based on lack of competence. In principle, the Superior Court has inherent and exclusive competence in injunctive matters as a court of first instance. Thus, the question is whether the Municipal Court exceeded its jurisdiction when it ordered the appellant to reconstruct the installation.

This debate has been studied recently by doctrine: see Daniel Bouchard & Hélène Gauvin, «L’article 56 de la Loi sur les compétences municipales: une jeune disposition, un vieux débat... latent» in Barreau du Québec, Développements récents en droit municipal 2008 (in French). The relevant provisions are section 29 of the Act respecting municipal courts as well as sections 25.1 and 56 to 61 of the Municipal Powers Act (MPA). In particular, the solution to the issue at hand turns on the interpretation of section 56 MPA: must it be interpreted as giving injunctive powers over immovables to the Municipal Court?

The Superior Court concludes that a restrictive interpretation should be favoured based on 2 principles of interpretation: 1) the expectation of coherence between laws; 2) the presumption of utility or validity of a legal disposition. As a result, section 56 MPA does not grant power to a Municipal Court to order the reconstruction of a sceptic installation, which is a permanent work and an immovable.

Of note is the fact that debate on the constitutionality of section 56 MPA was not addressed directly due to procedural questions.

Québec water case law 18: Authorisation denied for a class action further to rains and sewer backflow

(BY HUGO)

In Côté v. Montréal (Ville de) (in French), the Superior Court must decide whether to authorise a class action on behalf of all the persons having sustained damages further to the heavy rains of 2 August 2008 on the territory serviced by the water works and sewers of Montréal.

The motion to obtain authorisation alleges that the City's sewer system is outdated and inadequate, and that the City failed to take appropriate measures to ensure that flooding and sewer backflow would be avoided.

The Court first provides a brief overview of the principles applicable at the prior authorisation stage (see sections 1002 and ff. Code of Civil Procedure (CCP)).

Then, the Court proceeds to establish that the cumulative conditions required by section 1003 CCP have not been met: although the facts alleged seem to justify the conclusions sought, the recourses of the members of the group do not raise identical, similar or related questions of law or fact, notably because the sewer system is a fragmented patchwork under the responsibility of 19 different sub-municipal authorities and the amount of rain on 2 August 2008 varied significantly over the municipal territory.

Because of this, the Court does not decide whether the representative seeking to obtain the authorisation is in a position to represent the members of the class action adequately. The authorisation is denied.

Québec water case law 17: «Lower land is subject to receiving water flowing onto it naturally from higher land»

(BY HUGO)

In Petrecca v. Théodore (in French), the owner of a residence sues in civil liability his neighbour, the contractor who completed earthworks on the neighbour’s property, the seller/developer of his and his neighbour’s property, as well as the city where the two properties are situated. The damages claimed result from the swamping of the Plaintiff’s property further to the earthworks raised on the neighbour’s property.

The Superior Court decides that the neighbour is responsible on the basis of section 976 of the Civil Code of Québec (CCQ). Section 976 CCQ provides that neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local custom. In other words, the earthworks created an abnormal neighbouring annoyance. The tribunal reminds that liability for neighbouring annoyances is a no fault regime according to the Supreme Court’s teachings in Ciment Saint-Laurent v. Barrette.

The property seller/developer is responsible only as a seller - and not as a developer - on the basis of contractual liability for false representations.

The contractor is not responsible under the general extra-contractual liability regime. The city acted correctly in all respect and also cannot be held liable.

Significantly, section 979 CCQ is only invoked when the tribunal proceeds to determine whether the damages claimed for stress, troubles and inconvenience are justified and establish their exact quantum (see §216).

Québec water case law 16: Causality and trout mortality

(BY HUGO)

In Michaud v. Équipements ESF inc (in French), the Court of Appeal is on appeal of a judgement rejecting an action in civil liability for damages sustained by the owner of an aquaculture business comprised of a few artificial lakes seeded with trout as a result of heavy fish mortality allegedly caused by hydrocarbon contamination leaking through soil from a neighbouring industrial shop.

In first instance, the damages are established, as is environmental contamination from hydrocarbon leakage. The debate focuses on the causality link between the damages and the leak as well as on the evaluation and award of expert costs. Both these issues are on appeal.

With respect to causality, the Court states the principles relevant to the application of a presumption of causality and refers sections 2804, 2811 and 2849 of the Civil Code of Québec as well as to Morin v. Blais (SCC), Sarrazin v. Québec (Procureur général) (QCA - in French) and Longpré v. Thériault [1979] C.A. 258 (QCA) to find that circumstances are not serious, precise and concordant enough to give rise to a presumption establishing causality. The Court then proceeds to examine whether the appellant has met the burden of proof on causality to establish a link between hydrocarbon leakage and fish mortality under the light of the principles established in Lacasse v. Labrecque [1995] R.R.A. 596 (QCA). The Court concludes that evidence has not established on the balance of probability that fish mortality was caused by the leaks, and that the Superior Court has not made a manifest and dominant mistake on this point.

One last point worth mentioning is from the discussion about expert costs. At §94, the Court states that compliance with precedents stems from a public order imperative that allows justiciables to act and settle their disputes in a predictable framework («Le respect de l’autorité du précédent ne relève pas du caprice, mais elle reflète un impératif d’ordre public qui est de permettre aux justiciables de régler leurs affaires dans un cadre prévisible et d’agir dans ce cadre.»)

Follow-up on the sleeping giant in Québec water case law 12

(BY HUGO)

In a previous blog post, a recourse by aboriginal communities on the North Shore of the St. Lawrence River against Hydro-Québec as well as the federal and provincial governments was mentioned as potentially very interesting - and one to follow-up on...

Apparently, it might just end there. CBC reports (in French) that Hydro-Québec could pay CDN$ 125 M to the First Nations in pre-trial settlement of the claim.

Québec water caselaw 15: Earthworks in a wetland without a valid municipal authorisation

(BY HUGO)

In Rivière-Rouge (Ville de) v. Huguet (in French), the Defendant obtains a municipal authorisation to do earthworks on his property in the riparian area of a lake. The works starts on the same day, but a municipal inspector visiting the site realises that the filling is taking place in a wetland, something contrary to the municipal regulation. The municipality immediately informs the Defendant that the authorisation is cancelled and that the work must stop at once. Despite this, the Defendant goes ahead with the earthworks during the following days despite continued warnings from the municipality.

The defendant is charged with a penal infraction in strict liability for having done work without a valid authorisation a contravention to the municipal regulation. Although municipal authorities are not bound by an authorisation granted contrary to the municipal regulation, as is the case in this instance, the municipal inspector does not have the power to stop the works under the applicable municipal regulation. Moreover, the municipal regulation does not allow the municipal inspector to revoke the authorisation. Nevertheless, an illegal authorisation does not grant an acquired right, and the infraction the Defendant faces is to have conducted works without a valid permit. The Court finds that the Defendant has no defence of reasonable diligence, as he understood that municipality asked the works to stop but he rushed to complete the works to put the municipality before a fait accompli.

Québec water case law 14: Failure to obtain an authorisation to discharge waste water

(BY HUGO)

In CRI Environnement inc. v. Coteau-du-Lac (Municipalité de) (in French), the Plaintiff builds an industrial waste water treatment plant that discharges treated water containing benzene and chloroform into municipal sewers. The plant is built in 2002 and operated since 2003. However, the Ministry for Sustainable development, Environment and Parks has never issued authorisations to the Plaintiff under sections 22 and 32 of the Environment Quality Act (EQA) because the Plaintiff's discharges in the municipal sewers would exceed the municipal treatment plant's authorised maximal capacity. An additional ground for refusing to authorise the Plaintiff's discharges is that the authorisation under which the municipal treatment operates only allows treatment of grey water.

Hence, the Plaintiff incurs additional costs to transport its treated water to another treatment facility. The Plaintiff alleges that the Defendant municipality committed a fault in 2002 by failing to inform that the municipal sewers could not collect the Plaintiff's treated industrial waste water discharges. However, the Court finds that the Plaintiff's operation was always conditional on preliminary authorisations from the Ministry. The municipality has committed no fault, there is no causality link between damages claimed and the municipality's actions, and proof of the damages is insufficiently established.

The judgement presents some rules governing extra-contractual liability for municipalities and contains comments on the discretionary power of the Ministry to authorise polluting activities under the EQA.

Québec water case law 13: Defective septic tank

(BY HUGO)

In Thériault c. Construction Lortie inc. (in French), the Plaintiff, owner of a house in a riparian area, claims damages resulting from defects affecting the house’s waste water installation against the general contractor for having failed to fulfill its obligations to deliver a house with an adequate and functioning waste water installation. In turn, the general contractor alleges that the specialised subcontractor who built the installation is responsible for the damages. The subcontractor counters that the general contractor has imposed the choice of an inadequate installation to lower the construction costs. Moreover, the subcontractor claims that the municipality approved the inadequate installation and pressured the subcontractor into building it. The Court concludes that the general contractor is liable towards the Plaintiff, that the subcontractor has no extra-contractual liability towards the Plaintiff, and that the municipality is jointly and severally (in solidum) responsible for having failed to act in good faith and with reasonable diligence when authorising the waste water installation under the Regulation respecting waste water disposal systems for isolated dwellings.

The judgment provides some interpretative guidance with respect to the concept of «existing dwelling» in the Regulation respecting waste water disposal systems for isolated dwellings.

Québec water case law 12: The «sleeping giant» v. hydroelectric development?

(BY HUGO)

Uashaunnuat (Innus de Uashat et de Mani-Utenam) v. Québec (General Attorney) (in French) is an interlocutory judgement rejecting demands for third party intervention in an action by First Nation Communities against Hydro-Québec as well as the provincial and federal governments.

The interlocutory jugement is mostly irrelevant from a water management perspective. However, the merits of the case could shed an interesting light on the impact of natives rights, which have often been collectively described as the «sleeping giant» of Canadian water law, on a major river derivation project for hydropower generation (La Romaine River near Havre-Saint Pierre in Minganie).

Further to the authorisation of the hydropower development project, the Plaintiffs globally argue on the merits that they possess native titles and ancestral rights on the relevant territory, that the provincial and federal governments have failed to respect their fiduciary duties towards the First Nations, and that the various authorisations for the project under federal and provincial legislations for environment protection are null and void.

This is one to follow...

Québec water case law 11: obligations under a commercial lease and the cost of a well

(BY HUGO)

In Agritex (Ste-Martine) ltée c. 9049-1135 Québec inc. (Propane du Suroît) (in French), a counter-claim in contractual liability is made to recover the costs incurred by a commercial lessee further to the drying up of an existing well serving the leased property and the sinking of a new well. The tribunal awards the damages based on the commercial lessor's failure to respect the obligations: i) to provide the lessee with peaceable enjoyment of the leased property throughout the term of the lease; and ii) to warrant the lessee that the property may be used for the purpose for which it was leased and to maintain the property for that purpose throughout the term of the lease (section 1854 of the Civil Code of Québec).

In this case, the costs related to an industrial user's access to water are allocated to the user's lessor through the law of contracts. This case illustrates the transversal nature of water law accross traditional legal silos.

Québec water case law 10: Municipal responsibility for disgorgement of septic tanks

(BY HUGO)

In Dionne v. Gatineau (Municipality of) (in French), residents of a municipality claim damages against the municipality in extra-contractual liability before the Court of Appeal. The claim was rejected in first instance.

The defendant municipality delivered construction permits for new developments on its territory between the beginning of the 1970s and the end of the 1980s.

Instead of requiring particularised percolation tests, localisation plans from a land surveyor and an attestation from an engineer for each septic tank installed on a terrain as the by-laws required, the municipality issue construction permits in bulk and relied on an engineer who was hired by the developers, who ignored the by-laws, and who did not performed the required tests.

The Court of Appeal deals quickly with the element of fault. The municipality deliberately violated its own municipal by-laws on sanitary installations for private residences when issuing the construction permits, thus committing a fault. According to the Court, «the conduct of a municipality cannot be considered reasonable when it decides willingly not to follow its own regulations, or in other words, not to follow the law.» (§15) [Rough translation]

The Court of Appeal identifies the element of causality as more problematic: does the evidence establish, on the balance of probability, that damages suffered by the plaintiffs from the 1990s onward are the result of the defendant’s fault? The Court identifies many causes for the disgorgement of the septic tanks that led to health hazards and to the plaintiffs’ damages, among which soil conditions, inadequate construction and maintenance of sanitary installations... However, the Court concludes that the municipal contribution to the damages claimed rises to 75%, as these alternative causes justify the enactment and respect of the municipal by-laws in the first place.

Of note is the fact that this judgement serves to settle 103 claims through 5 representative files jointly selected by the parties’ attorneys. Causality was therefore examined «globally» by the Court. In this case, it is possible to argue that such a global approach adopted in «Justice's best interest» alters the assessment of evidence on the balance of probability in each claim with respect to causality.

This case can be linked to Beaudin v. Sept-Îles (Ville de) (in French), which was rendered in 2008 by the Superior Court and where another municipality was involved in a dispute relating to sanitation services.

Water case law in Québec 9: Validity of a municipal regulation protecting riparian areas

(BY HUGO)

Wallot v. Québec (City of) (in French) is another example of what appears to be a trend in Québec environmental law: the municipal arena shapes up to be the major battle front on environmental matters. The quote introducing the judgement immediately sets the tone:

«“There is no such thing as absolute ownership. Ownership is being modified constantly by social exigences” (William de Montmollin Marler)»

The reach of this comment is revealed further as the Court acknowledges that our economic system essentially relies on private property (§158).

In this case, the plaintiffs ask the Superior Court to declare null the defendant municipality’s regulation protecting the riparian area around Lake St. Charles.

The lake is the source of 50% of the drinking water provided by the defendant municipality, serving close to 300 000 persons.

During the summers of 2006 and 2007, toxic cyanobacteria proliferate in the lake due to phosphate inputs from fertiliser run-offs, septic tank leakage, etc.

The municipal regulation is adopted in June 2008 to counter this phenomenon by imposing the naturalisation and reforestation of heavily modified riparian areas on a 10 to 15 meters strip of land around the lake.

The plaintiffs are the owners of riparian properties on the Lake St. Charles who contest the validity of the regulation to avoid being forced to return part of their properties to a more natural state.

Firstly, the Court examines whether the defendant municipality is competent to adopt the challenged regulation. The Court states that the extent of municipal powers to regulate environmental matters must be interpreted liberally rather than restrictively. The object of the regulation is to protect the lake’s water quality by preventing the continued degradation of the lake’s riparian area and relates to public interest. This falls within the ambit of the municipal powers to regulate the environment under the Municipal powers Act (see notably sections 2, 4, 6, 19 and 26.1). On this issue, the Court thus concludes that the defendant municipality had the power to adopt the regulation challenged by the plaintiffs.

Secondly, the Court examines whether the regulation is reasonable or abusive. On this issue, the plaintiffs argue that the regulation is equivalent to a «forced dispossession without expropriation and/or a disguised expropriation». This argument mainly relies on section 952 of the Civil Code of Québec, according to which the defendant municipality should have indemnified the plaintiffs. Again, Courts will only interfere with the exercise of municipal powers in exceptional situations. A municipal regulation severely limiting the use of property rights is within the discretionary competence of municipal authorities. In expropriation cases, the general rule is and has long been that any statute providing for expropriation without compensation must be expressed in the clearest and most unequivocal terms, which is not the case for the regulation challenged. However, the Court determines that the plaintiffs keep some usage of the naturalised strip of land subject to the regulation and that their rights are not totally negated. Therefore, the regulation is reasonable and valid.

Thirdly, the Court examines whether the regulation’s adoption process conformed to obligations of procedural equity applicable to acts from an administrative authority. Citizens to which a regulation applies must be informed and have an opportunity to submit their observations. The Court reviews the decision process leading to the adoption of the regulation and determines that it was equitable.

As a result, the plaintiffs’ motion is rejected and the regulation stands. The judgement is on appeal.

On more point is worth mentioning in this judgement. The Court often mentions the precautionary principle and refers to the landmark obiter from the Supreme Court on this subject in 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Ville de) (see §31 of the Spraytech case and §91, 92 and 175 of the Wallot case). More particularly, in the section of the judgement determining the reasonable nature of the regulation, the Court states that the testimonies have established «a significant rational link» between the provisions of the regulation and the protection of a drinking water quality source. At this point, the Court reiterates that, according to the precautionary principle, no scientific evidence is required with respect to the evaluation of the means used in the regulation. In this context, the mention of the precautionary principle can only be considered an obiter in the Wallot case.

Water case law in Québec 8: Demolition of a new encroachement in the St Lawrence River riparian zone

(BY HUGO)

In Farazli v. Neuville (Ville de) (in French), the Court of Appeal dismisses the appeal of a Superior Court order to demolish works altering the St Lawrence River riparian zone.

The appellant built a large patio, a septic tank and a boat slip on her property in the St Lawrence River riparian zone in violation of the applicable provincial and municipal regulations and while only works for the stabilisation of the river bank against erosion were authorised.

The Superior Court ordered the destruction of the works and the restoration of the site in its initial condition under section 227 of the Act respecting Land Use Planning and Development. The Court of Appeal upholds the Superior Court decision.

Water case law in Québec 7: Class action for contamination of municipal groundwater sources

(BY HUGO)

In an interlocutory decision Spieser v. Canada (General Attorney) (in French), the Superior Court denies a motion by the General Attorney of Canada to annul a 2007 judgement authorising a class action further to the contamination of municipal groundwater sources due to the leakage of trichloroethylene (TCE) from a military base.

According to the General Attorney, the basis for the action is extra-contractual civil liability and requires the demonstration of (i) a fault, (ii) a damage, and (iii) a causality link between both as per section 1457 of the Civil Code of Québec (CCQ) - class action is only the procedural vehicle.

The motion essentially argues that the common questions raised by the action are negligible, and that individual recourses would be more appropriate given the very limited number of persons able to reasonably argue that they were affected by TCE.

The General Attorney stresses that exposure to TCE varies widely between members of the authorised group, as well as the nature of alleged illnesses which might have been caused by a large number of external causes. According to the General Attorney's co-defendant, the medical evidence on file establishes that the existence of a damage and a causality link with exposure to TCE is a fundamentally individual question that cannot be treated collectively.

Thus, the questions addressed by the Court relate to the very conditions enabling the designation of the group required for a class action as well as the description of the group.

The dispositions of the Code of Civil Procedure relevant to class actions in Québec can be found at section 1002 and ff.

The Court first states that the General Attorney's arguments rely on an expert report analysing only a fraction of the facts that may be brought as evidence at hearing on the merits. Second, the Court establishes that analysis of the causality link might not be a fundamentally individual question because the damages claimed might be a function of the increased risk of developing an illness.

After comparing alternative procedural options, the Court concludes that class action is the best procedural vehicle for all the parties to submit their case to the tribunal and dismiss the motion.

Water case law in Québec 6: Municipal responsibility for watercourse maintenance

(BY HUGO)

A recent judgement by the Court of Appeal, Charlevoix-Est (Municipalité régionale de comté de) vs. Tremblay (in French), examines extracontractual liability stemming from the municipal duty to maintain watercourses in good condition.

The Plaintiffs operate a lodge on the banks of a tributary to the St Lawrence River. On 31 August 2005, the remnants of Hurricane Katrina cause precipitations abundant enough to breach 3 beaver dams upstream of the Plaintiffs' lodge, resulting in a flash flood and damages to the Plaintiffs' property. As a result, the Plaintiffs file an action in civil liability against a Regional County Municipality and claim close to half a million Canadian dollars.

First, the Court rejects the Municipality's defence based on force majeure. Second, the Court establishes that the Municipality has an obligation of means under the Municipal Code (see section 782 among others - these sections are now replaced by the Municipal Powers Act, under which the scope of the municipal obligation might be different) to maintain rivers in good condition and free of obstructions that might hinder the flow of water. Finally, the Court concludes that the Municipality has not done anything to fulfill its obligation in conformity to the standard of the reasonable and prudent person, and confirms the Municipality's responsibility for the damages claimed.

Water case law in Québec 5: is there an increase in the enforcement of fish habitat protection?

(BY HUGO)

In the spring of 2009, the Canadian Commissioner of the Environment and Sustainable Development produced a report concluding that:

«Fisheries and Oceans Canada and Environment Canada cannot demonstrate that they are adequately administering and enforcing the Fisheries Act, and applying the Habitat Policy and the Compliance and Enforcement Policy in order to protect fish habitat from the adverse impacts of human activity.»

Could it be that since then, the federal government has stepped up its efforts to enforce the Fisheries Act? Whatever may be, it's now possible to find current case law on that regime's application.

Most recently, the Cour du Québec has rejected a motion to dismiss a procedure against a company for altering fish habitat in Québec (Procureur général) v. 9114-0137 Québec inc.

Water case law in Québec 4: defining fish habitat

(BY HUGO)

In Québec (Procureur général) v. Lauzon (in French), the defendant requests ministerial authorisation to excavate the bed of a natural stream running through his property to create an artificial lake on his land. Permission is refused on a preliminary basis and the defendant does not push the matter further.

Some years later, the defendant decides, without applying for an authorisation, to excavate another location on his property in order to create an artificial lake that is filled with water flowing from a nearby wetland. The artificial lake also has hydrological links to the natural stream mentioned earlier.

Within a year of the excavation, an inspector from the Ministry catches fishes in the artificial lake. The defendant is charged with an infraction in strict liability for a contravention to section 35(1) of the federal Fisheries Act. Article 35 reads as follows:

35. (1) No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.

2) No person contravenes subsection (1) by causing the alteration, disruption or destruction of fish habitat by any means or under any conditions authorized by the Minister or under regulations made by the Governor in Council under this Act.

The defendant principally argues that the artificial lake and its hydrological connections are not a fish habitat. A fish habitat is defined by the Fisheries Act as follows:

34. (1) (...)“fish habitat” means spawning grounds and nursery, rearing, food supply and migration areas on which fish depend directly or indirectly in order to carry out their life processes

The Court finds that the defendant contravened to the Fisheries Act. The permanent presence of fishes does not have to be demonstrated by the prosecution. The water environment needs only be susceptible to use as a habitat by fish. An intermittent stream can be a fish habitat.

This decision takes a more hydrologically and biologically sound position than other recent case law that does not considers surface waters where fishes are present as «fish habitat» under the Fisheries Act.

Water case law in Québec 3: groundwater extraction under the agricultural zoning regime

(BY HUGO)

In Québec, a new groundwater abstraction may have to be authorised under two governmental authorisation regimes.

The first regime is provided for by the Groundwater Catchment Regulation and generally targets all groundwater extraction projects in Quebec.

The second authorisation regime, which is provided by the Act respecting the preservation of agricultural land and agricultural activities (ARPALAA), is not primarily concerned with groundwater management and is only applicable in rural areas.

Nevertheless, the ARPALAA has impacts on groundwater management in Québec. Some of these impacts are described in this article.

The purpose of the ARPALAA is to preserve agriculture and agricultural land. Essentially, the ARPALAA is a land use management statute that generally prohibits any person, except with the authorisation of the Commission de protection du territoire agricole (CPTAQ), from using real estate property for purposes other than agricultural activities in designated agricultural regions.

Hence, if someone wants to extract groundwater in zoned agricultural land, the CPTAQ has to pre-authorise the extraction project. However, CPTAQ's decision, whether positive or negative, can be contested before the Administrative Tribunal of Québec (ATQ).

In Vergers Leahy inc. v. Fédération de l'UPA de St-Jean-Valleyfield (in French), the Appellant requests CPTAQ's authorisation to sink a well to produce bottled water in agricultural zone. The CPTAQ rejects the application and the Appellant contests this decision before the ATQ. In this instance, the parties request permission to file new evidence.

Among the many issues pertaining to administrative law decided in this appeal, the Court of Appeal crucially delineates the cases in which new evidence can be brought before the ATQ in appeal of the CPTAQ.

The Court establishes that the ATQ can only consider new evidence when there is an error in law or a determining error in fact in CPTAQ's original decision, in conformity with section 21.4 of ARPALAA.

As a result of all this, a refusal to authorise a groundwater abstraction project stands.