Canada: Courses Automobiles Mont-Tremblant C. Iredale: The Quebec Court Of Appeal Confirms The "Variable Geometry" Of Section 20 Of The Environment Quality Act

Between 2003 and 2009, the City of Mont-Tremblant adopted a series of regulations respecting noise, including constraints on the activities of a racing track operated in the vicinity of M. Iredale's property. The regulation differentiates regular activities from special and testing activities. Whereas the former are subject to various measures that include objective upper limits on noise, the latter are subject to limits in number, scheduling and duration without any reference to noise limits.

Before the Superior Court (QCCS), and within the numerous grounds for challenging invoked by M. Iredale, one of the arguments was that the municipal regulations were irreconcilable with section 20 of the Environment Quality Act (EQA) because they did not provide for an objective upper limit on the noise arising from some activities.

Section 20 of the EQA, a fundamental disposition in Quebec environmental law, prohibits the emission and the release of contaminants in various cases. More particularly, section 20 of the EQA in fine provides that no one may emit or discharge into the environment a contaminant that "is likely to affect the life, health, safety, welfare or comfort of human beings."

In first instance, the QCCS ruled that the absence of a normative noise limit for the conduct of special and testing events "is beyond understanding and disembodies the whole purpose of section 20 EQA."

On August 9, 2013, the Court of Appeal (QCCA), in a judgment written by the honourable Marie-France Bich, allowed the appeal of the municipality and dismissed the plaintiff's action.

While recognizing that municipal norms must comply with provincial laws, the QCCA specified that the prohibition in the last part of section 20 of the EQA is not absolute and is necessarily based on a case by case assessment:

"[99] Regarding the particular contaminant that noise is, it is indeed useless to mention that the legislator did not want to ban all noise or sound. It is excessive noise that, alone, may be targeted. However, what is excessive depends on the context. It is indeed a truism to state that the harmful effects of noise, for the purpose of the third part of section 20 of the EQA, cannot be evaluated in the same manner in an urban center and in a rural area, in a residential and in an industrial neighbourhood. In addition, the harmful effects themselves (and even more so when they are only potential) are an intrinsically fluctuating concept: Indeed, a continuous noise may be harmful when a punctual noise of the same intensity may not be, a noise may be less harmful if mitigation measures are put in place in the area surrounding its source, and so on. As a result, despite the fact that it intends to enact a prohibition and uses the language of prohibition, section 20 of the EQA provides for a subjective norm that is necessarily dependant on a fact-based, contextualised and individualised analysis of the situations that it may cover. Clearly, this norm may not be applied in the same manner on the integrality of Québec's territory and may not be applied in an abstract manner.

[100] In other words, section 20 of the EQA in its third part presents a  norm that requires a multi-factor analysis that depends on the circumstances and on an exercise of a combination of interests that are necessarily varied (and even changing), as well as evolving scientific, economic and social factors and elements, the proof of which, obviously, must be provided. In short, it is a prohibition with variable geometry, yet it remains essentially dependant on the circumstances." (Our translation, along with our emphasis)

The QCCA ruled that even though section 20 of EQA allows taking into account the precautionary principle, its application may not be based on hypotheses. Despite the fact that this provision may include an occasional event, it does not cover the simple possibility of harm and cannot be based on conjectures.

In this regard, the QCCA emphasised that section 20 of the EQA orders to conduct a contextual analysis, just as much as section 976 of the Civil Code of Québec (CCQ) that governs the normal neighbourhood annoyances "according to the nature or location of their land or local custom."

The QCCA applied these principles to the analysis of the regulation of the City of Mont-Tremblant and concluded that, as a result of a "contextualized and particularized exercise," the municipality chose to "rarefy, somehow, the occurrences of excessive noise" by limiting the days of special and testing activities. Adding that section 20 of the EQA does not necessarily require the imposition of an objective noise limit, the QCCA indicated that despite the fact that the track generates "occasional auditory inconveniences," the evidence does not reveal in a preponderant manner that this is likely to affect the health, comfort or welfare of the citizens.

The QCCA therefore concluded that section 20 of the EQA and the municipal regulations are compatible and confirmed the validity of the latter.

McCarthy Tétrault Comments

This case recalls that the prohibition of section 20 of the EQA in fine is not absolute. It demonstrates how many environmental norms, such as section 20 of the EQA and section 976 of the CCQ, require a factual, contextualised and individualised examination of the situations that they may cover. The decision of the QCCA also confirmed the latitude enjoyed by municipalities in regulating a potential nuisance such as noise. Finally, it recalled the necessity for plaintiffs to adduce serious and factual evidence in order to meet their burden of proof.

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