Originally published in Blakes Bulletin on Environmental
Law, February 2010
On December 10, 2009, in More v. Plante, the Quebec
Court of Appeal refused to issue an interlocutory injunction
against a company that began general construction work on a
building while an affiliated entity was waiting for an
environmental permit to build and operate a waste transfer station
at that location.
In Quebec, any undertaking that may involve the release of
contaminants into the environment must be covered by a certificate
of authorization (CA) issued by the Quebec Ministry of Sustainable
Development, Environment and Parks (MSDEP) pursuant to section 22
of the Environment Quality Act (EQA). In More,
the Court of Appeal was divided on the application of one of the
exclusions listed in section 2 of the Regulation respecting the
application of the Environment Quality Act (Regulation). Under
section 2, no CA is required to build or expand a building, unless
the building houses an activity that requires a CA.
Fiducie Remdev (Remdev) owns a large industrial building in
Longueuil, Quebec. In 2008, it rented a third of the building to an
affiliate, RCI Environnement Inc (RCI). In June 2009, RCI submitted
a CA application with the MSDEP, to build and operate a waste
transfer station in the space it rents from Remdev. Later that
month, Remdev and RCI wrote to the MSDEP saying that work on the
building would proceed in two stages. Remdev was to make general
improvements, including upgrading the drainage system, sidewalks,
alarm system, sprinkler system, and electrical system. RCI would
take care of turning its space into a waste transfer station. The
general work was to begin immediately. The MSDEP saw no problem
with this approach. In August 2009, Remdev received a construction
permit from the City of Longueuil. Subsequently, a group composed
of locals and a neighbouring company, also in the waste management
business, (the Appellants), applied to the Quebec Superior Court
for an interlocutory injunction to stop Remdev from beginning
construction. A safeguard order was issued but then cancelled when
the Superior Court held that there was no reason to issue an
interlocutory injunction in this case. The Appellants appealed.
Chamberland and Rochon JJA refused to grant the injunction. They
held that, to succeed, a plaintiff must show a colour of right and
the remedy must be necessary to avoid serious or irreparable
injury. If the existence of a right is doubtful or debatable, the
court must balance the advantages and disadvantages to the parties.
Remdev and RCI argued that for large industrial buildings with
multiple uses, construction and renovation triggers a CA
requirement only for that part of the building that will house an
activity requiring a CA. Although it did not rule on this
interpretation, the majority gave it sufficient weight to hold that
the right invoked by the Appellants was doubtful. The majority
noted that while the Appellants believed that Remdev needed a CA,
the MSDEP itself took the opposite view.
Further, the balance of inconvenience favoured denying the
Morin JA dissented, maintaining that a court cannot consider
separately different portions of a building depending on which of
these will house an activity requiring a CA. He considered it
irrelevant that the work would be done by two different
Morin JA added that even if the Appellants' right to an
injunction had not been clear, there would have been no need to
proceed with analyzing the balance of advantages and disadvantages,
nor to consider whether the foreseen injury was irreparable,
because the dispute involved the application of a public interest
law, the EQA. He therefore followed a line of decisions holding
that an interlocutory injunction should issue almost automatically
when it concerns an activity requiring an MSDEP authorization.
Finally, Morin J. dismissed the MSDEP's opinion on the need for
a CA, because whether a CA is required is a question of law that is
ultimately decided by the courts.
The criteria for obtaining an interlocutory injunction to
prevent work from starting before the MSDEP issues a CA are still
unclear. This recent decision by the Quebec Court of Appeal
suggests, however, that it may sometimes be possible, after
consulting with the MSDEP, to begin construction work before the CA
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