Case information

Property — Immovables — Civil liability — Damage caused by creation of wetlands on vacant lots as result of construction of autoroute nearby — Analytical framework to be used by appellate court when faced with clear calculation error affecting entire analysis of evidence — In context of analysis of action brought under art. 979 para. 2 of Civil Code of Québec for blocking of water flow by owner of lower land, whether owner of higher land has burden of proving increase in water level since its acquisition — Civil Code of Québec, art. 979.

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Between 1993 and 2023, the applicants, 2969-9352 Québec inc., 2969-9360 Québec inc., Groupe Cliffton inc., Richmond Investment Partnership, LP, and Galzam Holdings Inc., property developers, owned lots situated along autoroute 13 at the intersection of autoroute 440 in the territory of the intervener, Ville de Laval. In July 2012, they filed an application for a declaratory judgment in the Superior Court, asking that the lots be declared not to be marshes or swamps within the meaning of s. 22 of the Environment Quality Act as amended by An Act to amend the Environment Quality Act and other legislation, S.Q. 1988, c. 49 (EQA), except in a few identified places, so that they would not be subject to the authorization process and thus to the payment of the financial compensation required by the province. That application was dismissed in February 2015, and the applicants discontinued the appeal filed against that judgment in 2017. In February 2018, the applicants brought a second action in civil liability against the respondent, the Attorney General of Quebec, representing the Ministère des Transports et de la Mobilité durable (MTMD), in order to obtain, in the end, damages. In general, they held the MTMD responsible for creating wetlands on 16 hectares of the lots acquired. More specifically, they alleged that, when autoroute 13 had been built, the MTMD had put in a culvert that was too high compared to the flow channel there and that allowed water to retreat by flowing naturally onto their lots. In addition to damages for the loss in value of their lots and the costs incurred for professionals, they claimed reimbursement of the financial compensation they had paid to obtain the certificate of authorization required under s. 22 of the EQA in order to backfill 68,782 m2 of wetlands, before they sold the lots between 2021 and 2023. The Superior Court dismissed the applicants’ action, and the Court of Appeal dismissed the appeal.