On March 7, the City of Gatineau won its appeal in the case of Ville de Gatineau v. Stinson, 2023 QCCA 306. This decision overturned the Superior Court’s decision that repealed a resolution authorizing a minor exemption and ordered the destruction of a large residence known in the media as 79 Fraser Street.

79, Fraser Street in Gatineau. Source : Google Maps

The facts of the case date back to 2013, when the urban planning department of the City of Gatineau (hereinafter the “City“) issued a non-conforming building permit for the construction of a residence. In accordance with the building permit issued to the owner, Mr. Molla, the residence is located with a front setback that deviates from the municipal regulations. Following the discovery of this error, a few months later, while the construction work was still in progress, the Planning Advisory Committee (hereinafter the “PAC“) recommended the granting of a minor exemption to regularize the situation. In 2014, the City Council adopted the minor exemption, a resolution that was not acceptable to Mr. Molla’s neighbours or to Mr. Molla himself, who proposed that the City demolish his residence in exchange for compensation. Mr. Molla’s neighbours then filed an appeal for judicial review against the City to annul the resolution authorizing the minor exemption and order the demolition of the building.

Judgment of the Superior Court

In 2021, the Superior Court exercised its power of judicial review by examining the legality of the resolution adopted by the City Council and rendering a judgment quashing the resolution authorizing the minor exemption and ordering the demolition of the residence. In his analysis, the Honourable Michel Déziel, j.s.c., recalled the cumulative criteria to be met under the Act respecting Land Use Planning and Development, RLRQ c. A-19.1 (hereinafter the “Act“) for the granting of a minor exemption and noted that, in light of the PAC’s analysis report, the criteria relating to the applicant’s serious prejudice as well as the interference with the enjoyment of the neighbours’ right of ownership did not comply with section 145.4, para. 2 of the Act (paras. 232 to 235). Consequently, the Court ruled that the exemption could not be considered minor, but rather major (para. 272), and indicated that it had an improper purpose, namely to correct the error of a municipal official in order to avoid a potential action for damages against the City (paras. 224 and 258 to 260).

Judgment of the Court of Appeal

This decision, which the Court of Appeal overturned last month, was appealed by the City on two grounds: (1) misinterpretation of section 145.4 para. 2 of the Act and failure to consider all of the evidence, and (2) error in the application of the standard of review.

On the first ground, the Court of Appeal agreed with the City and found that the trial judge erred in his assessment of the criteria set out in section 145.4 para. 2 of the Act concerning the analysis of serious prejudice and the potential impact of the minor exemption on the enjoyment of the neighbours’ right of ownership.

In analyzing the serious prejudice test of section 145.4 para. 2 of the Act, the Honourable Sansfaçon, j.c.a., indicated that it is necessary to determine whether “the application of the by-law has the effect of causing serious prejudice to the person requesting it” rather than analyzing whether the minor exemption causes serious prejudice to the person requesting it (paras. 204 and 250-254). The Court of Appeal concluded that the application of the by-law caused serious prejudice to Mr. Molla, considering the financial impact of a potential demolition (paras. 45-48).

With respect to the analysis of the second criterion, namely the potential impact of the exemption on the enjoyment of the neighbours’ property rights, the Court of Appeal also concluded that the Superior Court had erred in its assessment of this criterion.

The Court of Appeal found this premise to be erroneous (paras. 66-71), since the trial judge dismissed an important part of the evidence by not considering the events between the filing of the application for a minor exemption and its granting, including, in particular, the arrival in office of a new city council and its efforts to analyze the application for a minor exemption (para. 70).

The Court of Appeal also concluded that the loss of sunlight in the front yard suffered by Mr. Molla’s neighbours did not constitute an abnormal inconvenience affecting their enjoyment of the property right, and found that the other inconveniences listed, namely the loss of privacy, the loss of view, and the imposing size of the building, were irrelevant since they were unrelated to the encroachment into the front yard (paras. 122 to 127)

On the City’s second ground of appeal, the Court of Appeal reiterated that the standard of review is reasonableness and reiterated that the courts must show deference to the decision-making process of elected municipal officials and refrain from usurping the functions entrusted to them (paras. 128-129). The Court also noted that this duty is otherwise incumbent on Council and not on municipal officials or the PAC (paras. 62 and 98).

It is important to note from this decision that the analysis of a minor exemption is discretionary and depends on the facts of each case, and that the courts generally show judicial restraint in these cases.

Our team is always available to answer your questions regarding any request related to minor exemptions and any urban and land use planning law issue.

Written by Mtre Camille Savard