The municipality of Saint-Augustin-de-Desmaures carried out a disguised expropriation by granting heritage status to private land, the Superior Court of Quebec ruled in January. An unusual decision, which threatens the integrity of the Cultural Heritage Act and weakens the protective powers of municipalities, according to lawyers.
The judgment of magistrate France Bergeron orders the City of Saint-Augustin to pay $150,000 to Simon Bouffard, who has owned a residence on the Domaine des Pauvres site since 2018. The reason: by granting protected status to this sector at heritage value, which previously belonged to the congregation of the Augustines, the municipality proceeded to a “disguised expropriation”, rules the Court.
The use of this argument in Quebec and Canadian law is not new. In 2018, the Supreme Court of Canada equated disguised expropriation to “an expropriation carried out outside [du] vslegislative framework “. An individual can therefore plead it if he feels aggrieved by a municipal or provincial regulation.
But in Quebec, the courts have mainly considered cases of disguised expropriation in environmental matters. Last year, for example, the Quebec Court of Appeal condemned the City of Mascouche to compensate a private landowner whose land had obtained “conservation” zoning through a regulation for the protection of natural environments. The court’s conclusion: there had been disguised expropriation.
Appealed by the municipality, this case was never heard by the Supreme Court of Canada, despite the involvement of seven environmental organizations, including the Center québécois de l’environnement (CQDE). The lawyer Anne-Sophie Doré, who represents the latter, notes a “growing pressure which is exerted on the municipalities”. “In cases where there is a tension between private property and the protection of the environment, or the protection of the general interests of society, we often hear this argument of disguised expropriation,” she says.
A first “
“Often raised […] in terms of environmental protection”, this concept is now in danger of crossing the fences of property law, affirms the lawyer Charles Breton-Demeule, who has carried out several research works on heritage. According to him, the Superior Court’s decision in SBDF inc. vs. Ville de Saint-Augustin-de-Desmaures is a “first” in the field and threatens the already weak powers of municipalities to protect built heritage.
The Cultural Heritage Act allows municipalities and regional county municipalities (MRC) to grant legal protection status to a property or site if it has significant heritage value. In this specific case, the municipality of Saint-Augustin-de-Desmaures adopted a regulation in 2019 to cite five lots surrounding what was formerly called the Domaine des Pauvres. The land, which belonged to the Augustines, is characterized by the presence of a chapel and a Calvary dating from the 19the century.
However, the plaintiff in this case, Simon Bouffard, had already acquired land within this sector, on which he wanted to build a house. Despite an opinion from its Heritage Council recommending that it solve the problem, the City did nothing, is it written in the judgment. After promising a meeting with Mr. Bouffard, the municipality did not give any sign of life either.
With regard to this decision [à Saint-Augustin]there should be clarifications to determine what does or does not constitute disguised expropriation
In her decision, Judge Bergeron considers that the constraints imposed on the individual in this case are “prohibitive”. Contacted by The duty, the mayor of Saint-Augustin, Sylvain Juneau, says that his municipal council will soon take a resolution to confirm that it will not appeal the decision. Nevertheless, argues Charles Breton-Demeule, the decision threatens to set a precedent.
“There, in terms of heritage, it’s the first time, and it still raises questions about the ability of cities to intervene,” he says.
A bill of $150,000 is less money in the municipality’s portfolio to protect heritage, observes the expert lawyer on the matter. Mayor Juneau also agrees that such a decision “could perhaps discourage” towns and villages from adopting citation regulations. “Rules are not ideal,” he says.
Review the law?
In Berthierville too, the argument of disguised expropriation is the subject of debate in court. Last year, the owner of the Moniales-Dominicaines-de-Berthierville monastery sued the municipality to cancel the heritage status of the building, which was classified in 2019. The plaintiff, André St-Martin , which owns the building, believes that the heritage protection measures are causing it “damage”. He wanted to demolish the monastery to erect a real estate project on the spot. The Court’s decision in this case is still awaited.
“The whole notion of disguised expropriation should be clarified and marked out by the legislator,” says Charles Breton-Demeule. “With regard to this decision [à Saint-Augustin], there should be clarifications to determine what does or does not constitute disguised expropriation. »
The expert suggests that the government of the Coalition avenir Québec expressly include in the Act that “the use of powers that have been given to municipalities is entirely legal and does not constitute disguised expropriation”. “And so that there are no compensation in these cases,” he said.
In the middle of the election campaign last year, the leader of the caquiste, François Legault, had undertaken to revise the legislative framework in terms of expropriations to review the amounts granted to the expropriated. Anne-Sophie Doré urges the government to reopen the law in order to “pay fair market value rather than potential income”.
In Saint-Augustin-de-Desmaures, despite the Court’s decision, Mayor Sylvain Juneau is committed to continuing his efforts to protect local heritage. “We intend to stay the course,” he said.