In recent weeks, several comments written by actors from the municipal world have circulated in the media regarding the judgments rendered in recent years by the courts in matters of disguised expropriation.
This proliferation of comments invariably questioning the legitimacy of compensation rules for expropriation comes as the Legault government is preparing to table a bill to amend the Expropriation Act.
Our profession rarely calls on us to comment on current events or to intervene publicly with regard to such statements or political actions. However, as lawyers who represent the interests of expropriated people on a daily basis, we have a duty to re-establish the facts, since such a fundamental debate concerning the rights of the entire population cannot be carried out through approximate opinions, shortcuts and generalizations based on unsubstantiated perceptions.
Contrary to what is currently conveyed by several elected officials, the judgments rendered recently by the Quebec courts, particularly in the context of the cases of Ginette Dupras and Senator Paul J. Massicotte, as well as by the Supreme Court of Canada, in no way call into question calls into question the right of municipalities to take concrete action to ensure the protection of the environment. On the contrary, our courts clearly recognize that municipalities can impose restrictive standards in this sense.
However, when the regulatory standards imposed by a municipality with respect to an immovable are so restrictive that they have the effect of preventing any possibility of reasonable use of the latter, then there is disguised expropriation of this building, resulting in the obligation for the municipality to pay its owner a “just and prior indemnity”, pursuant to article 952 of the Civil Code of Quebec.
This is a well-established principle and recently reiterated, for the umpteenth time, by the Superior Court in the context of the case between Senator Paul J. Massicotte and the City of Saint-Bruno-de-Montarville.
In this case, where we represented the interests of the corporate plaintiffs related to Mr. Massicotte, the City claimed to be empowered by law to expropriate private property for environmental protection purposes, without having the corollary obligation to pay any compensation whatsoever to its owner.
The Superior Court rejected this argument, which would represent an “extraordinary change in our judicial paradigm”, finding that it finds no support either in law or in the authorities of the superior courts.
None of the above reinvents the wheel, far from it. Such a judgment should not surprise anyone, especially not in a Canadian province with a civil law tradition like Quebec, where the right to property plays a fundamental role.
However, since its publication on March 7, several stakeholders from the municipal world have used this very particular case to plead, through tendentious arguments, in favor of significant changes to the compensation rules applicable to expropriation, and this, in order to avoid an alleged enrichment of landowners to the detriment of the community.
The arguments conveyed reflect a lack of knowledge of the realities specific to the expropriation process and the compensation rules currently in force in Quebec. These rules are based on the principle of “value to the owner”, which means that fair and reasonable compensation must be awarded to those expropriated, as opposed to a simple price or “market value” which would not take into account others. damages that may result from the expropriation.
Why this shade? Because expropriation constitutes a draconian attack on the right to property, an exorbitant power by virtue of which a public body can, in all legality, force an individual to cede his property to him, whether it be his residence or his livelihood, at a time of his choosing.
The revision of these compensation rules, which protect the rights of all Quebecers – and not just a handful of property developers or owners, as certain articles suggest – is a risky exercise, to say the least, which requires detailed analysis and comprehensive from a legal point of view.
This work must be elevated above political considerations and above all must not result in the possibility for expropriators to expropriate at a discount, without fairly and completely compensating the victims of expropriation.
However, behind an often colorful and denunciatory language that seems at first glance to make a lot of sense, this is precisely what many actors in the municipal world currently require.