Executive Summary: Key Legal and Evidentiary Issues

• Characterization of the plaintiff’s claim for building permits as a judicial review/mandamus proceeding requiring leave to appeal rather than a full appeal as of right
• Determination that the principal object and “fundamental nature” of the counterclaim remained a control of the municipality’s refusal to issue permits, rendering all connected conclusions dependent on that judicial review
• Assessment that the appeal was irregularly instituted because no application for leave to appeal, nor for extension of time, was filed against the Superior Court’s judicial review judgment
• Evaluation of the factual record showing the absence of any valid building permits and non-compliance of the rainwater capture system with the municipal construction by-law
• Review of the Superior Court’s discretion in ordering demolition for illegally erected constructions and in finding the appellant acted in bad faith and with hardly excusable conduct
• Rejection of the appellant’s ancillary claims (abuse of process, quérulence, provision for costs, and $362,126 damages) as frivolous, improvised and unsupported by any valid factual foundation

Factual background

Simon Messier undertook construction work and installed various works, including a rainwater capture system, on his immovable located within the territory of the Municipalité de Saint-Boniface. The municipality took the position that these works had been carried out without valid permits and in breach of its regulatory framework. It therefore instituted proceedings before the Superior Court seeking a series of orders under the Loi sur les compétences municipales (sections 55 to 61) and the Loi sur l’aménagement et l’urbanisme (section 227 and following). Those statutory provisions allow municipalities to seek court orders to remedy situations of non-compliance, including authorization to intervene in case of a taxpayer’s failure to obey. The municipality obtained orders against Mr. Messier to regularize or demolish the constructions and works that were deemed illegal, together with a range of ancillary orders and authorizations empowering the municipality to act if he did not comply. In response, Mr. Messier filed a counterclaim. He asked, among other things, that the municipality be ordered to issue the necessary permits for his works, that the municipal judicial recourse be declared abusive, that the municipality be declared quérulent, that he be granted a provision for costs, and that he be awarded damages totalling $362,126. The Superior Court rejected his counterclaim and his allegations of abuse of procedure.

Nature of the counterclaim and judicial review issues

In the Superior Court, the judge analyzed the essence of Mr. Messier’s demand that the municipality be compelled to deliver the permits. She concluded that this demand, in substance, was in the nature of a mandamus and therefore constituted a judicial review proceeding (pourvoi en contrôle judiciaire) of the municipality’s decision refusing to issue the permits, within the meaning of article 529(3) of the Code de procédure civile. That characterization had direct implications for appeal rights. Under article 30, paragraph 2, subparagraph 5 C.p.c., any judgment of the Superior Court rendered on a judicial review that seeks to enjoin a person to perform an act (such as issuing permits) is subject to leave to appeal, rather than an appeal as of right. The Court of Appeal relied on the well-established jurisprudence that where a proceeding contains several heads of relief, it is necessary to look at its principal object or “fundamental nature” in order to determine whether leave to appeal is required or whether a full appeal lies as of right. When additional conclusions are essentially dependent on the success of the judicial review aspect of the recourse, they do not in themselves confer a right of appeal as of right. Applying this framework, the Court of Appeal held that the essential nature of Mr. Messier’s counterclaim, and of the portions of the judgment associated with it, remained a judicial review of the municipality’s refusal to issue the claimed permits. The dismissal of that primary judicial review claim necessarily entailed the dismissal of the ancillary demands for declarations of abuse and quérulence, a provision for costs and damages. As a result, the appeal from the conclusions relating to the counterclaim was also subject to the requirement to obtain leave.

Procedural posture before the Court of Appeal

Mr. Messier filed what he treated as an appeal as of right from the Superior Court judgment. He did not seek leave to appeal that judgment, nor did he ask for an extension of time to file an out-of-time appeal against the dismissal of his judicial review. The municipality responded with a formal motion to dismiss the appeal under article 365 C.p.c., arguing that the appeal was irregular because the judgment was not appealable as of right. The Court of Appeal agreed. It held that the appeal was improperly formed because no application for leave had been presented, even though leave was mandatory for this type of judicial review judgment. Independently of the procedural defect, the Court of Appeal also examined whether the appeal had any reasonable prospect of success.

Assessment of the factual and legal merits

On the merits, the appeal was found to be untenable. The Court of Appeal noted that the notice of appeal was drafted only in very general terms and did not clearly identify a genuine error of law. The Superior Court’s orders were firmly rooted in an uncontested factual record. The evidence showed that Mr. Messier had never held a valid permit for the relevant constructions and works already undertaken on his property, and that this state of irregularity persisted at the time of judgment. Regarding the rainwater capture system, the Superior Court had concluded that the municipality was justified in refusing to approve an installation that did not comply with the letter and spirit of article 52 of the municipal construction by-law (Règlement de construction, règlement no 339). The Court of Appeal held that Mr. Messier had not, even on a prima facie basis, demonstrated any reviewable error in that analysis. His disagreement with the judge’s evaluation of the evidence was not enough to reveal a manifest and determinative error. The demolition orders issued by the Superior Court were described as the product of a discretionary exercise, following findings that the constructions had been erected illegally and that Mr. Messier had acted in bad faith and in a manner that was difficult to excuse. The Court of Appeal did not interfere with that exercise of discretion.

Disposition of the ancillary claims and damages

The Court of Appeal also addressed the ancillary claims that had been advanced by Mr. Messier in his counterclaim. These included a declaration that the municipality’s recourse was abusive, a declaration of quérulence against the municipality, a claim for a provision for costs, and a damages claim of $362,126. The Court characterized these claims as, on their face, frivolous, improvised and lacking any valid factual foundation. Because they were directly dependent on the success of the primary judicial review claim, their fate was tied to the core issue of whether the municipality was justified in refusing the permits and pursuing enforcement measures. Once the judicial review aspect failed, these ancillary claims could not stand.

Final ruling and overall outcome

In its final disposition, the Court of Appeal allowed the municipality’s motion to dismiss the appeal and formally dismissed the appeal itself, both with costs. The Court thus confirmed the Superior Court’s judgment in all respects, including the enforcement orders under the municipal and planning legislation and the dismissal of Mr. Messier’s counterclaim and damages claim. As a result, the Municipalité de Saint-Boniface emerged as the successful party in the Court of Appeal. The court awarded it “frais de justice” (costs of justice) in connection with both the motion to dismiss and the appeal, but the decision does not state a specific monetary figure for those costs, and Mr. Messier’s claimed $362,126 in damages was entirely rejected, so the exact total monetary amount in favor of the successful party cannot be determined from the judgment.