Case information

Charter of rights — Right to life, liberty and security of person—Psychological integrity—Municipal By-Law —Constitutional exemption —Did the appellate judges manifestly err in concluding that the applicant had not exhausted all administrative and municipal recourses prior to seeking a constitutional exemption? —Did the appellate judges manifestly err in their assessment of the applicant’s conduct during his efforts to obtain permission from the respondent to maintain the fence? — Did the appellate judges manifestly err in concluding that the applicant failed to prove, through convincing evidence, that no alternative to the fence, as a medically-required barrier, was reasonably available? — Did the appellate judges err in law by failing to recognize that post-traumatic stress disorder-affected war veterans constitute a clearly identifiable group deserving of the constitutional exemption sought by the applicant? — Did the appellate judges err in law by determining that the prescription period for the moral damages claimed by the applicant began on March 8, 2018? — Did the appellate judges err in dismissing the applicant’s application for permission to present indispensable new evidence? —Did the appellate judges err in concluding that the applicant failed to identify any principle of fundamental justice in support of his claim under s. 7 of the Canadian Charter of Rights and Freedoms? — Canadian Charter of Rights and Freedoms, s. 7

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In 1986, the applicant, Mr. Smith, acquired property surrounded by fifteen-foot hedges, in the respondent Town of Hudson (“Town”). In 2014, after the cedar hedge became sparse and costly to replace, Mr. Smith built a six-foot wooden fence alongside the deteriorated hedges. However, this was done in violation of municipal by-laws which specified a maximum fence height of four feet. The Town required that the applicant comply with the by-law. The Town issued several statements of offence against Mr. Smith which led to three judgments that found him guilty of having infringed the by-law. Mr. Smith filed an originating application seeking declaratory judgment under the pretense that the by-law deprived him of his right to security of the person provided for by s. 7 of the Charter, as being forced to remove the fence would aggravate the post-traumatic stress disorder symptoms he developed as a result of his deployment in an active war zone. Mr. Smith sought a constitutional exemption from application of the by-law to him, as a remedy pursuant to s. 24(1) of the Charter. Furthermore, Mr. Smith claimed $50,000 in moral damages from the Town. The Town sought, by way of cross-application, an order to have the fence removed at the expense of Mr. Smith. The Superior Court of Quebec dismissed Mr. Smith’s application and allowed, in part, the Town’s cross-application. The Court of Appeal dismissed the principal appeal filed by Mr. Smith and allowed the incidental appeal filed by the Town.