Case information

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Property law – Immovable property – Expropriation – Whether Court of Appeal erred in dismissing Applicant's motion to quash notice of expropriation (s. 44 of Expropriation Act, R.S.Q., c. E-24) – Whether Applicant's right to privacy was violated.

The Respondent municipality sent Mr. Desmarais a notice of expropriation. Mr. Desmarais filed a motion to have the notice quashed under s. 44 of the Expropriation Act. The Superior Court dismissed the motion on the basis that the Administrative Tribunal of Québec had jurisdiction to determine whether the outcome sought by the expropriating party was lawful. Moreover, the Court noted that the concept of enclosed land provided for in the Civil Code of Québec did not apply to expropriation for public purposes and that the right to expropriate was a vested and virtually sovereign right. Finally, Mr. Desmarais had not established the existence of serious abuse in the circumstances.

The Court of Appeal dismissed the appeal filed by Mr. Desmarais. It found that art. 999 C.C.Q., on which he was relying, [translation] "is of no relevance in contesting an expropriation under section 44 of the Expropriation Act". Article 999 provides that, if land is enclosed "as a result of the division of land pursuant to a partition, will or contract, right of way may be claimed only from a co-partitioner, heir or contracting party, not from the owner whose land affords the most natural way out". The Court stated that, [translation] "[e]ven if expropriation created a situation in which article 999 of the Civil Code of Québec could apply, this would not in itself constitute a case of abuse or misuse of power justifying intervention by the courts".