Canada: Can A Municipal Noise Bylaw Be Suspended At An Interlocutory Stage? A Quebec Court Answered Affirmatively

Last Updated: May 24 2016
Article by Romain Droitcourt

Coexistence of conflicting property uses due to urban development is one of the major challenges which municipalities have to deal with. Municipalities often authorize residential development or redevelopment of property near existing commercial, industrial or recreational activities, which can then become sources of nuisance for residential newcomers. Often, in these situations, the new residents complain about nuisance to their municipalities and insist that the city settle the problem, that, in their minds, they created. Sometimes, the municipalities, giving in to public pressure, enact new bylaws which provide for restrictions on the existing commercial, industrial or recreational activities. In return, the industries and businesses subject to these restrictive bylaws challenge their validity on various legal grounds, such as disguised expropriation, discrimination, unfairness, etc.

As bylaws are of immediate application on principle, before a judgment on the merits is rendered, the industries and businesses who challenge these bylaws will demand that the Court suspends the application of these bylaws, pleading that they cause severe and irreparable harm to their business activities.

Can an industry or business ask a Court to suspend or exempt it from the application of an impugned municipal bylaw for a certain period of time pending judgment?

An example of a situation where such a request was made to the Court is the 2015 case of Club de Tir l'Acadie against the City of St-Jean-sur-Richelieu1.

The Facts

Club de Tir de l'Acadie ( the "Club") is a major shooting club that has been located in the city of Saint-Jean-sur-Richelieu (the "City"), for approximately sixty years.

Residential development in the neighbourhood surrounding the Club started in the 1980's and intensified over the 20 years between 1990-2010. Therefore, the residents of the neighbourhood came long after the Club was established.

During this period of intense residential development, a municipal noise bylaw (no. 0527) was in force. However, the Club never received any notice of violation nor statements of offence with respect to the noise threshold. In fact, no decibel ("dbA") limitations were contained in this bylaw. The bylaw prescribed that shooting activities were forbidden Monday to Friday from 9pm to 7am and Saturday to Sunday from 5pm to 9am.

Notwithstanding the Club's absence of any infringement, the City passed a municipal resolution in July 2014, which stated that the Club had to stop its activities as they were then being conducted on its property, due to the fact that the Club was now surrounded by thousands of homes.

On July 6, 2015, the City adopted bylaw no. 1358 modifying bylaw no. 0527. The new bylaw was to come into force on July 17, 2015, less than two weeks after its adoption.

Despite the fact that weekends were the busiest time for the Club, especially during summertime, bylaw no. 1358 provided that shooting activities held on Saturdays should henceforth only be allowed from May 1st to September 30th between 10am and 4pm. Moreover, such activities were to be forbidden on Sundays for the same period of the year (with the exception of two pre-arranged shooting events). In addition, it would be forbidden to hold shooting activities having a noise level over 60 dbA as calculated outside the Club's property.

Claiming that this new bylaw was discriminatory, unreasonable, abusive and only aimed at preventing the Club from holding any shooting activities, the Club filed a motion to quash the bylaw.

Alternatively, the Club argued that the consequences of this new bylaw amounted to disguised expropriation, and sought to have such bylaw deemed unenforceable. 

Finally, considering the severe effects of the bylaw coming into force immediately, the Club sought an interlocutory injunction or a safeguard order to maintain the status quo until a decision was rendered on the bylaw's validity.

The Difficult Conditions to be Fulfilled in Order to Obtain an Interlocutory Injunction or a Safeguard Order

In addition to the emergency criterion, three other conditions have to be fulfilled by a petitioner in order to obtain the interlocutory injunction or the safeguard order2 in order to suspend the application of a municipal bylaw:

  1. A prima facie case
    It is necessary to satisfy the court that there is a serious question to be tried (i.e., the "serious question" test).
  2. Irreparable harm
    Generally, this requires the petitioner to demonstrate that unless the injunction is granted, the petitioner would suffer a harm that is not susceptible or is difficult to be compensated by damages.
  3. Balance of inconvenience
    This is the determination of which of the two parties will suffer the greater harm from the granting or refusal to grant the injunction.

In a context of public law, this threshold is difficult to satisfy.

The first reason is that municipal bylaws benefit from a presumption of validity3.

The second reason is that municipal bylaws are enacted by democratically-elected councillors and are presumed to be passed for the common good.  Therefore, granting an interlocutory injunction can be seen to frustrate the pursuit of the common good, even if the bylaw has not been yet analyzed on the merits. For this reason, an interlocutory injunction suspending the application of a municipal bylaw should not be granted unless the public interest is taken into consideration in the balance of inconvenience test and weighed together with the interest of the private petitioners. To this effect, the Supreme Court of Canada wrote that "the public interest normally carries a greater weight in favor of compliance with existing legislation. The weight accorded to public interest concerns is partly a function of the nature of legislation generally, and partly a function of the purposes of the specific piece of legislation under attack"4. The public interest therefore carries great weight in favor of compliance with legislation in suspension cases when the impugned provisions are broad and general and affect many people5.

The Decision

The Court considered that the first condition (prima facie case) was met by the Club since the City could not prove any former infraction of the Club. Further, the City had never engaged in serious discussions with the people concerned and/or performed accurate studies regarding the noise issues. Moreover, the Court considered the fact that the residential neighbours had settled in the area long after the Club had opened and knew about the Club's activities when they settled there. Therefore, the municipal bylaw was deemed unreasonable, abusive and discriminatory and the Club succeeded on the first step of the test.

Regarding the second condition of the test (irreparable harm), the court considered that the non-suspension of the bylaw would result in a cessation of the Club's activities in the short-term future and therefore constituted a great harm. At this stage, the Court examined the public interest and weighed the prejudice of granting or refusing the bylaw suspension. The Court considered that even if a bylaw benefits from a presumption of validity, the harm suffered by the Club was higher than the harm suffered by its neighbours since the latter group had decided to settle near the shooting range long after the Club had started its activities and that they knew about it. The neighbours accepted the risk associated with living in close proximity to the Club.

Finally, as to the third condition (balance of inconvenience), the Court held that the damages related to the close-down and the job losses were higher than the damages related to the alleged nuisance. The Court also noticed that the City, when it authorized residential development, had never required buffer zones to be maintained.

The application of the bylaw was therefore suspended for approximately 5 months.

This decision is one of the rare cases where a court moved to suspend a municipal bylaw. Existence of the Club prior to the area's residential development was an important element taken into account in order to reach this conclusion. 

Footnotes

1 2015 QCCS 3444.

2 Manitoba (A.G.) v. Metropolitan Stores LTD., [1987] 1 S.C.R.

3 Syndicat de la copropriété communauté Milton Parc v. 9251-3191 Québec inc., 2014 QCCS 3012.

4 RJR Macdonald Inc. v. Canada (A.G.), [1994] 1 S.C.R., p. 351.

5 Manitoba (A.G.) v. Metropolitan Stores LTD., [1987] 1 S.C.R., p. 147.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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