Summary

Keywords

Constitutional law ? Division of powers ? Federal aeronautics power ? Whether case concerning constitutionality of legislation that still exists becomes moot for attorney general who appealed case in public interest simply because private parties that initiated action settled their dispute out of court ? Whether ss. 22 and 46.0.1 to 46.0.12 of Environment Quality Act, CQLR, c. Q 2 (EQA), s. 57 of Act respecting the conservation of wetlands and bodies of water, S.Q. 2017, c. 14 (ACWBW), and Regulation respecting compensation for adverse effects on wetlands and bodies of water, CQLR, c. Q 2, r. 9.1 (Regulation), are constitutionally inapplicable in all respects to construction of aerodrome as result of doctrine of interjurisdictional immunity ? Whether authorization or permit scheme that is subject to exercise of executive discretion, like scheme in s. 22 EQA, is necessarily inapplicable to work or undertaking within federal jurisdiction under Constitution Act, 1867 ? Whether ss. 22 and 46.0.1 to 46.0.12 of EQA, s. 57 of ACWBW and Regulation are inoperative in all respects during construction of aerodrome as result of doctrine of federal paramountcy ? Whether compensation scheme established by ss. 46.0.1 to 46.0.12 of EQA, s. 57 of ACWBW and Regulation is form of indirect taxation that is ultra vires powers of provincial legislature under Canadian Constitution, such that it must be declared constitutionally invalid.

Summary

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After receiving approval from the Department of Transport of Canada, the respondents 9105425 Canada Association and Corporation de l’aéroport de Mascouche, real estate promoters, began tree clearing work on December 2, 2016 on land in the intervener city, Ville de Mascouche, in order to build an aerodrome on that land. However, a large portion of the land (two lots) was made up of wetlands and bodies of water, and s. 22 of the Environment Quality Act, CQLR, c. Q 2 (EQA), required anyone wishing to carry out work in wetlands or bodies of water to obtain ministerial authorization first. On December 7, 2016, Ville de Mascouche filed an originating application in the Superior Court in order to seek a provisional injunction to stop the tree clearing work pursuant to the EQA. On December 9, 2016, a first provisional injunction order was made. On December 19, 2016, a safeguard order was made further to the provisional injunction after an amended originating application was filed. The applicant, the Attorney General of Quebec, representing the Ministère du Développement durable, de l’Environnement et de la Lutte contre les changements climatiques (MDDELCC), intervened in the case as an impleaded party. The safeguard order was renewed by the Court of Appeal until a judgment on the merits was rendered. The respondent Attorney General of Canada then intervened as an impleaded party to argue that the EQA scheme might interfere with the exercise of the federal aeronautics power. During the hearing of the case on the merits on June 26, 2017, the respondent real estate promoters filed an application with the MDDELCC for a certificate of authorization under s. 22 of the EQA. The hearing was stayed until the MDDELCC made a decision on the application. On September 15, 2017, the MDDELCC informed the respondent real estate promoters that the certificate would be issued if they made a financial contribution of $4,373,420 as compensation for the wetland lots affected by the work, in accordance with a statutory amendment made by the Act respecting the conservation of wetlands and bodies of water, S.Q. 2017, c. 14, enacted on June 16, 2017. The Superior Court dismissed the application for a permanent injunction and declared s. 22 of the EQA constitutionally inapplicable in this case. The Court of Appeal dismissed the appeal and the incidental appeal filed by the parties for mootness, given the fact that, while the case was under advisement, Ville de Mascouche and the respondent real estate promoters had entered into an agreement in principle to end the project to build the aerodrome.

Lower Court Rulings