Disguised expropriation | A new law that doesn’t just make people happy

Municipalities will now be able to protect the natural environments on their territory without fear of being sued by developers for disguised expropriation. A look back at a legislative change that makes many people happy… and some unhappy.

What change are we talking about exactly?

On December 8, the National Assembly adopted Bill 39, which modifies the Municipal Taxation Act and other legislative provisions. The project notably provides for the addition of new provisions to the Law on development and town planning (LAU) concerning infringements of property rights.

This is a vague wording. Especially for an issue as sensitive as property rights…

Bill 39 provides for the addition of an article (245) to the LAU which states that “an infringement of property rights is deemed justified […] when it results from an act which respects one or other of the following conditions. In the case where it is a question of protecting wetlands and bodies of water, a natural environment that has significant ecological value or to ensure the health or safety of people or the security of property, municipalities cannot be prosecuted for disguised expropriation.

What act are we talking about here?

There Law on development and town planning already confers several powers on municipalities so that they comply with government guidelines regarding land use planning. In a context where cities must redouble their efforts to protect their natural environments, they have made several modifications to their development plans and zoning regulations in recent years. With these new provisions, cities will therefore be able to protect certain natural environments without fear of being sued by the owners of the land in question.

And why were these changes made to the law?

It was a repeated request from the municipal world, which faces several suits for disguised expropriation after changes to zoning regulations in recent years. This is particularly the case of the Montreal Metropolitan Community (CMM), which is facing lawsuits totaling more than $700 million after adopting two regulations to protect natural environments. Cities affirm that they must respect government guidelines and protect a greater proportion of natural environments on their territory. In several cases, municipal prosecutors have called on the Government of Quebec as a guarantee, which means that the bill could be assumed by the Quebec state in the event that the courts rule in favor of the developers.

We imagine that the municipal world welcomed the news…

Marc-André Le Chasseur, lawyer in municipal law, who notably represents the CMM, said he was “very happy with the result for the municipalities”. According to him, these modifications are not revolutionary: “It puts the counter back where it was before recent judgments in favor of developers. » The lawyer recalls that several court decisions, including the Supreme Court of Canada, have ruled over the years that environmental protection had become a priority issue and that the right to property was not absolute. “We no longer have the luxury of time to protect the environment,” says lawyer Jean-François Girard, who is also a biologist. Disguised expropriation proceedings had become a way for developers to enrich themselves,” he adds.

What do the promoters think?

“There is a lot of disappointment. I find it frankly disappointing as a way of making public policies today, when we have not been informed [de cet amendement] », Says Isabelle Melançon, CEO of the Urban Development Institute of Quebec (IDU) and former Quebec Minister of the Environment.


The CEO of the Urban Development Institute of Quebec (IDU) and former Quebec Minister of the Environment, Isabelle Melançon

According to Mme Melançon, this amendment arrived “like a hair in the soup” without giving industry players the opportunity to be heard. “No one is against the virtue of wanting to protect natural environments. However, the bill does not have to come only to owners who have held land, sometimes for several years, for which they have paid their taxes,” she mentions. The IDU also denounces the fact that these amendments are “declaratory”, that is to say that they apply to proceedings before the courts.

Is this type of legislation unique in Quebec?

According to Marc-André Le Chasseur, the Greenbelt Actin Ontario, contains similar provisions, including section 19 providing that “no action taken or not taken in accordance with this Act or its regulations constitutes an expropriation”.

Will this be contested in Quebec?

“I expect that, we will challenge the constitutionality of the law. But it is totally doomed to failure,” believes Marc-André Le Chasseur. According to Isabelle Melançon, lawyers are in fact preparing to challenge these legislative changes in court. On the LinkedIn network, lawyer Sylvain Bélair, specializing in expropriation cases, did not mince his words on this subject. “I lack the legal vocabulary to describe Bill 39 hastily adopted this morning by the National Assembly. So I’m going to take inspiration from recent advertisements. ODIOUS: Adjective. Which excites disgust, indignation. Synonym: vile, execrable. It is odious to adopt a law in such a hypocritical manner, it is odious to despoil private property rights with such impunity. On this note, I do not wish you a wonderful holiday season. We will see you at the Court in 2024,” he wrote last Friday.

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