In recent weeks, several comments written by actors from the municipal world have circulated in the media regarding judgments rendered in recent years by the courts in matters of disguised expropriation.
This proliferation of comments invariably questioning the legitimacy of the rules of compensation for expropriation comes as the Legault government prepares to table a bill amending the Expropriation Act.
Our profession rarely calls on us to comment on current events or to intervene publicly with regard to such declarations or political initiatives. 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.
Unfounded arguments
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, there is then a disguised expropriation of this building, resulting in the obligation for the municipality to pay its owner “just and prior compensation”, pursuant to article 952 of the Civil Code of Quebec.
In other words, a municipality can appropriate a private property for public utility, in particular the protection of the environment, but it must in return compensate its owner, who does not have to assume alone the cost of measures benefiting the community as a whole.
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 a “change […] extraordinary aspect of our judicial paradigm”, judging that it finds support neither in the law nor in the authorities of the superior courts.
The disguised expropriation of which the companies linked to Mr. Massicotte are victims was recognized by the Superior Court, as was their right to the determination of an expropriation indemnity.
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 specific case in order 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.
A fair and equitable compensation plan
The arguments conveyed show 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 granted to those expropriated, as opposed to a simple price or a “market value” which would not take into account other 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.
Under the current rules, an expropriated person must neither become impoverished nor enriched at the end of the expropriation process: he must be compensated so as to be reinstated in the same conditions as before the expropriation, nor more, no less.
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.