Executive Summary: Key Legal and Evidentiary Issues

• Boisé claimed that lot 670 was landlocked under articles 997 and following of the Civil Code of Québec and sought a right of way over chemin des Marguerites.
   
• At issue was whether the existing conventional right of way over chemin Lavoie, a farm road in the agricultural zone, still gave adequate access once the lot was subdivided for a cottage development.
   
• The CPTAQ's preliminary orientation could not create an enclave, since Boisé withdrew its application before any final decision was made.
   
• Public-law administrative constraints, such as a CPTAQ restriction, cannot cause an enclave, which is created by other immovables or by a natural physical obstacle.
   
• Economic enclave failed because the alleged access problem flowed from Boisé's own decision to change the lot's use, and no evidence of the required work, its cost or the available options was filed.
   
• Evidence showed that clearing work on chemin des Marguerites began in April 2021, before Boisé bought the lot or received the CPTAQ's position.
   

Facts of the case

The dispute arose among owners of land on or near the shore of Lake Témiscouata, in Témiscouata-sur-le-Lac. A non-agricultural "white zone" roughly 200 metres wide was created along the lake in 1991. Four years later, three roads (chemin Lang, chemin Leclerc and chemin des Marguerites) were excluded from the agricultural zone so that lakeside lots could reach the public road.

The defendants and impleaded parties reach their lots through a right of way over chemin des Marguerites, which crosses Jacqueline Martin's property. That right of way was established by deeds dated June 21, 2017 and November 24, 2020.

Raynald Parent, François Allaire and Louise Savard registered Le Boisé de la pointe-du-Lac Témiscouata inc. on March 16, 2021. The three Allaire-Savard children were also shareholders. On July 8, 2021, Boisé became owner of lot 670, acquired from Lise Lavoie, and of lot 5 654 492. A right of way over lot 669, known as chemin Lavoie, gave lot 670 access to the public road.

Parent, a real estate developer for 20 years, testified that the project called for six recreational cottages. His application to extend the overhead power network, however, provided for 95 single-family units. The website of BLT, a company of which he is the sole shareholder, projected 11 recreational lots, though Parent denied approving that content.

Boisé had applied to the CPTAQ to extend the chemin Lavoie right of way to future owners of the subdivided lots, and that application was completed on July 5, 2021. In a preliminary orientation dated October 19, 2021, the CPTAQ indicated that the application should be refused because three roads had already been recognized as roads outside the agricultural zone. Boisé cancelled the scheduled meeting and withdrew on March 11, 2022, having taken no steps in the interval.

Meanwhile, clearing work to extend chemin des Marguerites and bring in electricity had begun on April 14, 2021. The work was halted at André Guimont's lot when he refused to let the machinery through.

Boisé filed suit on May 26, 2022 and amended its application on August 29, 2024. Its proposal called for chemin des Marguerites to be extended northwest across lots owned by Ferme Prépierre Ltée, Lyne Beaupré and Régis Lavoie to reach lot 670. Boisé also claimed $4,000 in damages with legal interest and the additional indemnity. Guimont, Construction SLPM Inc. and Martin contested. They argued that the lot already had access to the public road and that letting its new residents use chemin des Marguerites would exponentially increase traffic.

Policy and legislative provisions at issue

Article 997 of the Civil Code of Québec allows an owner whose land has no access to the public road, or only an insufficient, difficult or impracticable one, to require a neighbour to provide the passage needed to use and exploit the land, against compensation. Under article 998, the passage is claimed from the neighbour from whom it may most naturally be sought, considering the state of the premises, the benefit to the enclosed land and the burden on the servient land. Article 999 provides that where the enclave results from dividing land by partition, will or contract, passage may be demanded only from the co-partitioner, heir or contracting party, and without compensation.

The court also relied on article 1725, as raised by Martin. Under that provision, a seller warrants the immovable against violations of public-law restrictions, except where the restrictions were disclosed, were discoverable by a prudent and diligent buyer, or were registered at the land registry office.

The right of way granted on purchase covers chemin Lavoie, a farm road about 20 feet wide. It permits travel on foot or by any vehicle and extends to the relatives of Boisé's assignee and to its visitors. Parent acknowledged that this right of way is valid if lot 670 is not subdivided.

Reasoning and analysis

Boisé argued that the CPTAQ's refusal to let future lot owners use chemin Lavoie made that road impracticable. The court rejected this argument for three reasons.

First, the CPTAQ never rendered a decision, because Boisé withdrew before the hearing, five months after the preliminary orientation. Second, even an unfavourable decision would not have helped Boisé. An administrative constraint arising from public law cannot cause an enclave, which under article 997 is created by other immovables or by a natural physical obstacle such as a ravine or mountain. Relying on 4356527 Canada inc. c. Bélisle, the two Aubin c. Nadeau decisions and Grimes c. 9211-7191 Québec inc., the court held that the Superior Court decides whether an enclave exists and where any passage lies. The CPTAQ then determines the possible use of that servitude. Third, invoking a public-law limitation to shift a burden onto neighbours ran against the purpose of the enclave provisions. Those provisions are meant to stop a person from unilaterally imposing a charge on neighbouring land.

The court found that Boisé knew the right of way lay in the agricultural zone before signing the deed of sale, and that it began work before completing the purchase. Under article 1725, a buyer who fails to exercise vigilance must bear public-law restrictions. Any recourse Boisé might have would lie against its seller, subject to the constraints that prevent a buyer from blaming the seller for its own lack of vigilance.

On economic enclave, the court applied Turbide c. Boucher and Rankin c. Gaucher. Under those decisions, the assessment weighs proportionality, intended use and costs against benefits. An owner also cannot claim an enclave that results from a decision to change the land's use. Parent admitted that lot 670 would not be landlocked if only one residence were built, so the difficulty stemmed from Boisé's plan to subdivide the lot.

Allaire testified that the last stretch of chemin Lavoie was hard to drive and needed clearing, but he did not describe the difficulties. Parent, by contrast, said he had travelled the road "at least 1,000 times" without any problem. Nothing in the evidence showed a topography making the 20-foot farm road difficult or impracticable.

Boisé also filed no evidence detailing the work contemplated to open up access to lot 670, its cost, or the options available to make the route sufficient and practicable. Evidence comparing chemins Lang, Miclerc, Lavoie and des Marguerites was very thin, so the court could not have identified the most suitable route even if it had found an enclave.

The court further found that Boisé was seeking the most convenient access, both for its own buyers and for the other projects Parent leads personally or through BLT, which the court identified as Boisé de la plage and Boisé de la Pointe-du-Lac. Convenience is not the legal test.

Ruling and overall outcome

The court held that lot 670 is not landlocked and dismissed Boisé's application with legal costs. Because the threshold question failed, it did not decide where or on what conditions a servitude should run. The result favours the contesting defendants, Guimont and Construction SLPM Inc., and the impleaded party Jacqueline Martin. Boisé's $4,000 damages claim was dismissed along with the application. The judgment does not state any monetary amount, and the costs awarded are not quantified.