Replacement of bylaw not having effect of restarting computation of time

Supreme court | Real Property | Expropriation | Procedure on expropriation

Owner purchased lot located on territory of municipality, intending to eventually subdivide lot for residential construction. Following adoption, in 1991, of bylaw by municipality, most of owner’ lot became part of conservation zone in which authorized uses were limited to recreational and leisure activities. Majority shareholder of owner only became aware of existence of bylaw in 2001. In 2005, regional county municipality (RCM) adopted similar bylaw. In 2007, owner brought action in nullity, alleging that it had been victim of disguised expropriation. Owner’s action in nullity was dismissed by trial judge on ground that it had not been instituted within reasonable time. Owner appealed that decision to Quebec Court of Appeal, which concluded that trial judge had failed to consider that appellants’ adoption of contested bylaws represented abuse of power. Court of Appeal set aside decision and declared that bylaws were inoperable in respect of owner. Municipality and RCM appealed. Appeal allowed. Action to annul municipal bylaw for abuse of power must be instituted within reasonable time. Here, evidence showed that impugned bylaw was adopted in 1991. Replacement of municipality’s bylaw with bylaw adopted by RCM did not have effect of restarting computation of time. Thus, 16 years elapsed between adoption of impugned bylaw and its being contested in court. In addition, time that elapsed after owner’s majority shareholder had acquired factual knowledge of bylaw was at least 5 years. Given discretionary nature of Superior Court power of judicial review, that 5-year period was in itself sufficient for trial judge to dismiss action in nullity for being out of time. Therefore, trial judge’s decision should be restored.

Lorraine (Ville) c. 2646-8926 Québec inc. (2018), 2018 CarswellQue 5527, 2018 CarswellQue 5528, 2018 SCC 35, 2018 CSC 35, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); reversed (2016), 2016 CarswellQue 10477, 2016 CarswellQue 11002, 2016 QCCA 1803, Julie Dutil J.C.A., Mark Schrager J.C.A., and Étienne Parent J.C.A. (C.A. Que.).

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