On August 22, 2011, the Superior Court (Court) rendered judgment
in Girouardv.Ville de Mont
St-Hilaire1, an interesting decision in the field
of both municipal and environmental law.
The facts can be summarized as follows. On August 7, 1992, the
plaintiffs bought a plot of land located in the immediate vicinity
of Mont St-Hilaire (Plot). The couple held the Plot for 12 years
without building on it. Until 2003, the Plot was located in an area
in which family housing was permitted, but at the risk of rock
falls. In 2003, the City of Mont St-Hilaire (City) undertook
studies and enlarged the zone in which construction was prohibited,
by way of regulation. In 2004, the plaintiffs requested a
construction permit for the Plot, which was refused based on the
modified regulation. This regulation was later amended, but the
property of the plaintiffs remained in the territory within which
all new construction is still prohibited.
The plaintiffs contested the validity of this regulation and,
subsidiarily, claimed damages from the City in the amount of
$540,874 for disguised expropriation of their property, because of
the loss of its market value. They also sued the Royal Institution
for the Advancement of Learning and McGill University, as owners of
a sector of the Mont St-Hilaire, alleging an abnormal neighbourhood
annoyance because of the risk of falling rocks, and sought a court
order so that stabilization works be performed to prevent rock
slides or, in the alternative, a condemnation to pay damages.
The Superior Court dismissed the plaintiffs' action in
favour both of the City of Mont St-Hilaire and of the Royal
Institution and McGill University, with costs.
Firstly, the Court held that a municipal council has, pursuant
to the Act Respecting Land Use Planning and Development,
the power to independently regulate landslide zones, and to
regulate or prohibit all or certain land uses, structures or works,
taking into account the danger of rockfalls, or any other factor
specific to the nature of a place which may be considered for
reasons of public safety. Once this regulation has been validly
adopted, the municipality is justified in refusing to issue a
construction permit that would otherwise contravene its
The Court rejected the plaintiffs' argument that the
regulation of the City constituted a disguised expropriation,
without a fair and prior compensation. According to the Court, a
party invoking disguised expropriation must establish that the City
used its regulating power in bad faith, or for illegitimate or
unreasonable purposes, which was not proven in this case.
With respect to the claim against the Royal Institution and
McGill University, the Court explains that it cannot grant the
injunction requested by the plaintiffs to perform stabilization
works to prevent the risk of falling rocks. On the one hand, the
conclusions sought are too vague to be executed and, on the other
hand, they did not take into account the restrictions imposed by
the "Conservation Agreement" with the Ministry of
Environment, regarding the area of the Mont St-Hilaire at stake and
prohibiting any activity which could disturb the ecosystem, except
through ministerial authorization.
Moreover, the Court concluded that the risk of rock falls did
not constitute an abnormal neighbourhood annoyance in the
circumstances. The Court specified that the plaintiffs were aware
of the landslide risk from the moment they bought the property, and
that it would also be unfair to blame the Royal Institution and
McGill University for this, given that the risk did not emanate
from their actions, but was a natural phenomenon influenced by
various environmental factors outside of human control.
Consequently, the Court held that the risk of rockfalls was
foreseeable at the time of purchase of the Plot, and that the
plaintiffs thus accepted this inconvenience within the limits of
Article 976 of the Civil Code of Québec.
McCarthy Tétrault was representing the Royal Institution
for the Advancement of Learning and McGill University in this
1. 2011 QCCS 4273
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