Veilleux v. Quebec (Commission de protection du territoire agricole), [1989] 1 S.C.R. 839
Réal Veilleux and Rémi Veilleux Appellants
v.
Commission de protection du
territoire agricole du Québec Respondent
and
Corporation municipale de Barnston-Ouest Mis en cause
indexed as: veilleux v. quebec (commission de protection du territoire agricole)
File No.: 19961.
1987: May 13; 1989: April 20.
Present: Beetz, Lamer, Wilson, Le Dain* and La Forest JJ.
on appeal from the court of appeal for quebec
Environmental law -- Preservation of agricultural land -- Acquired rights -- Foundations and flooring existing on lot at time of decree bringing lot under Act to preserve agricultural land -- Foundations and flooring forming part of ruins of house demolished five years previously -- Ruins not uncropped ‑- Whether existence of foundations and flooring constituting use of lot for purpose other than agriculture -- Whether appellants have acquired rights -- Utility of rules developed by the courts with respect to zoning and acquired rights -- Act to preserve agricultural land, S.Q. 1978, c. 10, ss. 1(1), 101, 102.
The appellants alleged that they had acquired rights under s. 101 of the Act to preserve agricultural land to use a lot for a purpose other than agriculture and in particular to alienate and subdivide the lot and build a house on it without authorization from the Commission de protection du territoire agricole. The lot in question had been subject to the provisions of the Act since June 13, 1980. On that date the stone foundations and wood flooring of a residence built in 1945 and demolished in 1976 still existed and were not "uncropped". On July 24, 1980, part of the lot, including the site of the old foundations, was sold, with the vendor retaining ownership of the other part. The purchaser thereupon sent the Commission a statement to the effect that he held acquired rights to build a house on this lot. Construction of the new residence began as soon as the municipality issued the building permit. On July 28, 1983, the Commission issued an order directing the appellants to vacate the sale and to cease using the lot for any purpose other than agriculture. Faced with the Commission's refusal to revoke its order, the appellants filed a motion in the Superior Court seeking a ruling that they had acquired rights under s. 101 of the Act. The motion was granted but this judgment was reversed by the Court of Appeal. This appeal is to determine whether the stone foundation of a house covered by wood flooring which was not "uncropped" on June 13, 1980 is a non-conforming use giving rise to an acquired right within the meaning of ss. 101 et seq. of the Act.
Held: The appeal should be dismissed.
The appellants relied on art. 406 C.C.L.C. and s. 6 of the Charter of Human Rights and Freedoms. Both of these, while recognizing the fundamental nature of the right of ownership, make it subject to the limitations and prohibitions contained in statutes or regulations. The Act to preserve agricultural land contains a prohibition of a public nature. As the appellants' lot is located in an agricultural region, they must prove that it is in an exceptional situation covered by the Act. Since the Act itself specifies the circumstances giving rise to acquired rights, the other rules developed by the courts with respect to zoning and acquired rights cannot have the effect of conferring acquired rights other than those specified by the Act or of conferring them in a way not contemplated by the Act. These other rules are useful, however, in the interpretation of terms not defined by the Act.
The appellants do not have acquired rights under s. 101. This provision protects the rights of those who were actually using their land for other than agricultural purposes at the time the Act became applicable to it. The owner of unused and deserted land does not have a non-conforming right of use to protect that would justify the exclusion of that land from the ambit of the Act. At the time of the decree, all he has is a right of ownership stripped of any right of use other than that allowed by the Act. In the case at bar, there is no question that in the past this lot was used for residential purposes; but this use was abandoned when the house the ruins of which remain was demolished in 1976. At the time of the decree, June 13, 1980, no effective use was made of the lot or of the old foundations located on it. The appellants therefore cannot rely on s. 101. Unused land is not used for purposes other than agriculture, as required by this provision.
The appellants' argument that the absence of vegetation indicates and preserves the acquired right to use of the lot for purposes other than agriculture cannot be accepted. Section 102, on which they rely, does not apply to an interruption or abandonment of use which occurred before the date on which the Act became applicable to a lot. Moreover, s. 102 refers to the "right recognized by section 101". This provision makes s. 102 inapplicable, and accordingly makes the presence or absence of vegetation irrelevant, unless acquired rights pursuant to s. 101 are first found to exist. The appellants have not established the existence of acquired rights pursuant to s. 101.
Cases Cited
Referred to: Commission de protection du territoire agricole du Québec v. Rhéaume, [1984] C.A. 542.
Statutes and Regulations Cited
Act to preserve agricultural land, S.Q. 1978, c. 10 [now R.S.Q., c. P-41.1], ss. 1(1), 22, 26, 28, 29, 30, 31, 34-42, 98, 101, 102, 103, 116.
Charter of Human Rights and Freedoms, R.S.Q., c. C-12, s. 6.
Civil Code of Lower Canada, art. 406.
Authors Cited
Codère, Danielle. "La Loi sur la protection du territoire agricole et le droit privé". Dans Michel Poirier éd., Droit québécois de l'aménagement du territoire. Sherbrooke: Éditions Revue de Droit, Université de Sherbrooke, 1983.
Cormier, Louis A. et Louis-V. Sylvestre. Loi annotée sur la protection du territoire agricole. Montréal: Wilson & Lafleur, 1980.
Cormier, Louis A. et Louis-V. Sylvestre. Loi sur la protection du territoire agricole: commentaires, décisions, jugements. Montréal: Wilson & Lafleur, 1984.
APPEAL from a judgment of the Quebec Court of Appeal, [1986] R.J.Q. 1402, [1986] R.D.I. 205, reversing a judgment of the Superior Court, [1985] C.S. 174. Appeal dismissed.
Pierre G. Geoffroy, for the appellants.
Serge Cardinal, for the respondent.
//Beetz J.//
English version of the judgment of the Court delivered by
BEETZ J. --
I - Introduction
The Act to preserve agricultural land, S.Q. 1978, c. 10, now R.S.Q., c. P‑41.1 (the Act), was adopted in 1978 to preserve agricultural land in Quebec, as its title indicates. Section 22 empowers the government to identify any part of the territory of Quebec by decree as a designated agricultural region. In a designated agricultural region or, under ss. 34 to 42, in reserved areas therein, ss. 26, 28 and 29 prohibit any person, except with the authorization of the Commission de protection du territoire agricole du Québec (the Commission), from using a lot for any purpose other than agriculture, a term defined by the Act in s. 1(1), from effecting a subdivision or from alienating a lot while retaining a right of alienation on a contiguous lot.
The Act makes certain exceptions to these prohibitions. One such exception is designed to safeguard, inter alia, the rights of persons already using a lot for a purpose other than agriculture at the time a decree was adopted. This exception is contained in s. 101 of Division IX of the Act, titled "Acquired Rights", which has led to considerable litigation. It is primarily this section which the Court must interpret, in accordance with the definition given to "agriculture" by the Act, which includes in particular "leaving land uncropped" ("le fait de laisser le sol sous couverture végétale"). In the case at bar, at the time the applicable decree was adopted, the lot which is at issue still had on it the stone foundations and wood flooring of a house built in 1945 and demolished in 1976. These foundations and flooring were not "uncropped" ("sous couverture végétale").
The Court must decide whether, when the decree was adopted, the existence of these foundations and flooring was a use of the lot for a purpose other than agriculture within the meaning of s. 101.
II - Facts and Proceedings
The facts are not in dispute. They were admitted at the hearing. They are summarized by the appellants in their factum as follows, and this summary was accepted by the respondent in its factum:
[TRANSLATION] Lot 6C of range I of the cadastre of the township of Barnston has been subject to the provisions of the Act to preserve agricultural land . . . since June 13, 1980, the effective date of the third designated agricultural region decree, which covered the territory of the municipal corporation of Barsnton Ouest.
On that date the stone foundations and wood flooring of a residence built in 1945 and demolished in 1976 still existed and were not "uncropped".
On June 13, 1980, the residence and its remains had never been built on or used for agricultural purposes within the meaning of the Act to preserve agricultural land.
By a deed of alienation dated July 24, 1980 Réal Veilleux sold part of this lot to Rémi Veilleux, including the site of the old foundations.
At the time of this alienation Réal Veilleux, the vendor, retained ownership of part of the lot.
The deed of sale of July 24, 1980 contains the following clause on page 5:
"This sale is not subject to any authorization by the Commission since there is at present a foundation on the land sold hereby, the said foundation existed before June 13, 1980 and the said foundation has not been left uncropped; the seller accordingly has acquired rights as defined in ss. 101, 102 and 103 of the said Act."
On August 5, 1980, Rémi Veilleux sent the Commission de protection du territoire agricole a statement that he held acquired rights to build a residence on this lot within the meaning of s. 101 of the Act.
On August 7, 1980, Rémi Veilleux applied for and obtained a permit from the municipal corporation of Barnston Ouest to build a residence.
The construction of the new residence began as soon as the mis en cause issued the building permit (on August 7, 1980), and the old foundations were removed after the new residence was built.
On July 28, 1983, the Commission de protection du territoire agricole du Québec, without a hearing, issued an order directing the applicants to vacate the sale of July 24, 1980 and to cease using this lot for any purpose other than agriculture.
On August 18, 1983, Rémi Veilleux filed with the Commission an application to revoke this order.
In a decision dated December 21, 1983, the Commission refused to revoke its order.
In January 1984, the appellants filed a motion in the Superior Court asking it for a ruling that they had acquired rights under s. 101 of the Act to use lot 6C for a purpose other than agriculture, and in particular to alienate and subdivide the lot and build a house on it without authorization from the Commission.
The Superior Court allowed this motion on January 4, 1985, [1985] C.S. 174.
On an appeal by the Commission the Court of Appeal reversed the Superior Court judgment in a unanimous judgment dated April 21, 1986 and, accepting the Commission's contentions, ruled that the appellants do not have the acquired rights they are claiming and could not alienate and subdivide the land in question without authorization from the Commission: [1986] R.J.Q. 1402.
Hence the appeal.
III - Legislation
The relevant provisions of the Act are as follows:
1. In this act, unless the context requires otherwise,
(1) "agriculture" means the cultivation of the soil and plants, leaving land uncropped or using it for forestry purposes, or the raising of livestock, and, for these purposes, the making, construction or utilization of works, structures or buildings, except residences;
26. In a designated agricultural region, no person may use a lot for any purpose other than agriculture without the authorization of the commission.
28. No person may, except with the authorization of the commission, effect a subdivision in a designated agricultural region.
29. No person may, in a designated agricultural region, except with the authorization of the commission, effect the alienation of a lot while retaining a right of alienation on a contiguous lot or on a lot that would otherwise be contiguous if it were not separated from the first by a public road.
The alienation of one or several contiguous lots or of lots which would be contiguous if they were not separated by a public road shall not be made in favour of more than one person, except with the authorization of the commission.
The surface of a lot in respect of which a right is recognized in virtue of Division IX is not deemed contiguous.
30. Subdivision or alienation made in contravention to section 28 or 29 may be annulled.
Any interested person, including the Procureur général, the commission or the municipal corporation where the lot is situated may apply to the Superior Court to have such nullity declared.
31. In a designated agricultural region, the owner of a vacant lot under a title registered on or before 9 November 1978 may erect thereon, within five years of that date or, as the case may be, the date of the coming into force of a decree contemplated in section 22, without the authorization of the commission, a single residence and use, for that purpose, an area not exceeding a half‑hectare.
Where, on 9 November 1978, a person is the owner of several vacant lots, contiguous or not, situated in the same municipality, he may erect, on the same conditions, a single residence on one of such lots.
101. A person may, without the authorization of the commission, alienate, subdivide and use for a purpose other than agriculture a lot situated in a designated agricultural region, in a reserved area or in an agricultural zone, to the extent that that lot was being used or was already under a permit authorizing its use for a purpose other than agriculture when the provisions of this act requiring the authorization of the commission were made applicable to that lot.
This right exists only in respect of that part of the surface of the lot which was being used for a purpose other than agriculture or for which a permit authorizing use for a purpose other than agriculture had already been issued, when the provisions of this act requiring the authorization of the commission were made applicable to that lot.
102. The right recognized by section 101 subsists notwithstanding the interruption or abandonment of the use other than agriculture. It is extinguished, however, by the fact that that part of the surface in respect of which the right exists is left uncropped for over one year from the time when the provisions of this act requiring the authorization of the commission were made applicable to that lot.
103. A person may, without the authorization of the commission, enlarge the surface area of a lot in respect of which there exists a right recognized by section 101.
This area may be increased to a half‑hectare if, at the time when the provisions of this act requiring the authorization of the commission were made applicable to it, this lot was being used or was already under a permit authorizing its use for residential purposes. It may be increased to one hectare if its use or authorized use under the permit was for commercial, industrial or institutional purposes.
IV - Decisions of the Courts Below
Fortin J. rendered the judgment of the Superior Court.
He commenced with the definition of "agriculture" in s. 1(1) and concluded from this that if the land was "uncropped" it was subject to the prohibitions of ss. 26 to 29. When the ground surface indicates human intervention, however, the nature or purpose of this intervention has to be determined by reference to this definition. Is the purpose of the human intervention "agriculture" as defined in the Act? If it is, the lot is being used for agricultural purposes. If on the other hand the purpose of the human intervention is not agriculture, as so defined, the land is being used for a purpose other than agriculture. It was admitted that the foundations and flooring in question were not "uncropped" on June 13, 1980, the date the applicable decree came into effect. Such foundations are not included in the definition of "agriculture". Residences are even expressly excluded from that definition. In Fortin J.'s opinion, therefore, the presence of these foundations and flooring was a use of the lot for purposes other than agriculture and protected the appellants' acquired rights.
The Commission argued that it is inadmissible for a lot abandoned for residential use purposes thirty or forty years ago not to resume its agricultural function, and that such an interpretation was contrary to the very purpose of the Act. Fortin J. replied he would subscribe to this argument but for s. 102. He said the following on this point (at p. 178):
[TRANSLATION] The Court would subscribe to this proposition if the legislator had not limited its power of interpreting and understanding the Act by s. 102. The rule is straightforward: acquired rights are not lost by not being used unless the ground in question is left "uncropped" for more than a year; there is no time limit to this passivity.
It can be assumed that the legislator knew that, like any zoning by‑law, the new Act would create considerable disruptions in the law of immoveable property. He sought to protect agriculture and at the same time to give effect to certain acquired rights. Doubtless in order to avoid costly trials and lengthy hearings, he chose a radical method of proof, a witness which cannot lie: vegetation. If none exists, there must be a readily identifiable work, building or activity. If there is vegetation, nothing can be done even if excavations establish the old acquired right beyond all doubt . . . .
The simplicity of this rule leaves little scope in its implementation for varied interpretations and still less for judicial discretion.
Whether we are dealing with disused factories or commercial buildings, an unoccupied residence or ruins or simply the foundation of any such building, it does not really matter how much stronger the evidence is, provided the existence of the acquired right is satisfactorily established, namely that there is no vegetation.
The parties also debated a more general question: is it necessary to consider the rules developed by the courts to protect acquired rights in matters such as municipal zoning?
Fortin J. replied (at p. 176):
[TRANSLATION] . . . in the case of this Act the legislator himself defined and circumscribed the acquired rights and determined the requirements for their existence and extension. Rules developed by the courts can only supplement the silence of the legislation.
Fortin J. nonetheless cited with approval the following passage from "La Loi sur la protection du territoire agricole et le droit privé", by Danielle Codère, in Michel Poirier ed., Droit québécois de l'aménagement du territoire (1983), at p. 183:
[TRANSLATION] As the Act to preserve agricultural land is zoning legislation, the legislator could have relied on the judicially developed rules of the general theory of acquired rights in zoning matters. Sections 101 to 103 of the Act suggest that there were two reasons why he did not do so. First, the concept of an acquired right was limited to allow for the recovery of land for agricultural purposes when that is possible, and it was extended to preserve the free exercise of the right of ownership over land which no longer had agricultural potential. Second, this provision codifies the rules of precedent recognized under the theory of acquired rights in zoning matters by defining their scope in the context of the Act. The judicially developed rules established on the matter are still useful, as they can be used to supplement the silence of the legislator.
The judgment of the Court of Appeal was rendered by Owen, Beauregard and LeBel JJ.A. Beauregard and LeBel JJ.A. both wrote reasons for judgment agreeing with each other in part. Owen J.A. concurred with his two brother judges.
On the more general question of whether rules developed by the courts to deal with questions of zoning and acquired rights should be considered, LeBel J.A. wrote that [TRANSLATION] "[a]s the legislator has not defined the concept of acquired rights . . . reference must be made to the general rules on the matter" (p. 1045). In his opinion, these assume some effective use of the ground, and the cessation of such use will result in the loss of rights exercised before the new regulations came into effect.
LeBel J.A. considered that (at p. 1045):
[TRANSLATION] The requirement of being covered by vegetation, as a condition for the loss of acquired rights, applied only after the Act came into effect. It is a departure from the general rules regarding acquired rights which it preserves, despite an interruption in their use, because of the absence of vegetation.
He concluded from this that vegetation could not be used as a criterion for determining whether an acquired right exists.
LeBel J.A. was also of the view that the purpose of the Act is both to provide protection for zones actually used for agricultural purposes and for those which have agricultural potential. In his opinion, s. 101 only applies and only protects acquired rights for lots used for purposes other than agriculture at the time a decree comes into effect. Furthermore, he wrote at p. 1045:
[TRANSLATION] . . . it is also for the applicant[s] to show the nature of the exceptional use and its effectiveness. The admissions of the parties indicated that a residential use had definitely once existed. However, the previous owners had abandoned it. All that remained were unused ruins . . . . This parcel was not used for agricultural work. As it was not allocated to any other use it . . . fell, when the Act to preserve agricultural land came into effect, within the control provisions contained in that Act as part of the reserved agricultural territory. The [respondents] therefore could not benefit from acquired rights under s. 101 A.P.A.L.
Beauregard J.A. came to the same conclusions as LeBel J.A. In his opinion, the trial judge had erred in relying on s. 102. This section, he wrote, only applies when acquired rights have been shown to exist under s. 101. When the decree came into effect in the case at bar the land was not being used for a purpose other than agriculture and there were therefore no rights recognized by s. 101, which expressly excluded the application of s. 102.
V - Issue and Submissions of the Parties
While the parties agreed on the facts, they did not completely agree on the definition of the issue.
In my opinion, as LeBel J.A. pointed out in the Court of Appeal, the appellants themselves defined the issue in the conclusions of their application for declaratory relief:
[TRANSLATION] DECLARE that the stone foundation of a house covered by wood flooring which was not "uncropped" on June 13, 1980 is a non‑conforming use giving rise to an acquired right within the meaning of ss. 101 et seq. of the Act to preserve agricultural land.
The arguments made by the parties adopted in essence either the reasons of the Superior Court or those of the Court of Appeal.
The appellants argued that the stone foundations and wood flooring constituted use for a purpose other than agriculture for two reasons. First, they said, the provisions contained in s. 101 for the protection of acquired rights should, as the trial judge pointed out, be read in light of those dealing with the extinction of those rights contained in s. 102. In making vegetation a means of extinguishing acquired rights, the legislator by implication recognized that the absence of such vegetation was a basis for the recognition of acquired rights.
The second reason was based on the definition of "agriculture" given in s. 1(1): foundations and flooring which are not covered by vegetation are not "agriculture". They are therefore a use of the lot for a purpose other than agriculture within the meaning of s. 101. Relying on the authors Louis A. Cormier and Louis-V. Sylvestre, Loi annotée sur la protection du territoire agricole (1980), at pp. 315‑16, they argue that the test to be applied must meet two criteria: human intervention for purposes other than agriculture. The stone foundations and the flooring meet these two criteria.
The appellants further submitted that the Act is a complete and independent code governing acquired rights and there is no need to refer to other rules, such as those developed by the courts in zoning matters. Finally, they argued that where the Act is ambiguous, it should be given a strict interpretation favorable to ownership, in accordance with art. 406 of the Civil Code of Lower Canada and s. 6 of the Charter of Human Rights and Freedoms, R.S.Q., c. C‑12:
406. Ownership is the right of enjoying and of disposing of things in the most absolute manner, provided that no use be made of them which is prohibited by law or by regulations.
6. Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law.
On the method of interpretation, the respondent, for its part, argued that the Act should be given a broad and liberal construction, in view of the public interest it seeks to promote; the respondent noted in this connection that the Act came into effect retroactive to the date it was tabled for first reading (s. 116), and that it prevails over general or special Acts applicable to municipalities, as well as any other provision of a development plan, or of a zoning, subdivision or construction plan or by‑law (s. 98).
The respondent admitted and argued that, since the Act specifies the situations in which acquired rights can be invoked, these situations are the only ones that can confer acquired rights which derogate from the provisions of the Act. However, it maintained that beyond this, recourse may be had to the general rules established by the courts in matters of zoning and acquired rights.
On the substantive issue, the respondent maintained that the existence of acquired rights depends solely on s. 101: s. 102 refers expressly to the right recognized by s. 101 and so clearly cannot be applied until the existence of an acquired right pursuant to s. 101 has first been recognized.
The respondent further argued that for an acquired right to be recognized pursuant to s. 101, the use of a lot for a purpose other than agriculture must, as the section expressly states, exist when the provisions of the Act were made applicable to that lot; and, the respondent added, there must be effective use of the lot at that time. Prior uses or proposed uses of the lot do not confer acquired rights.
VI - Method of Interpretation
The appellants relied on art. 406 of the Civil Code of Lower Canada and s. 6 of the Charter of Human Rights and Freedoms. I believe that the response to this argument must be that of Mayrand J.A., writing the majority reasons of the Court of Appeal in Commission de protection du territoire agricole du Québec v. Rhéaume, [1984] C.A. 542, at p. 547:
[TRANSLATION] The respondent is seeking to rely on art. 406 of the Civil Code and on s. 6 of the Charter of Human Rights and Freedoms. Both of these, while recognizing the fundamental nature of the right of ownership, make it subject to the limitations and prohibitions contained in statutes or regulations. The Act to preserve agricultural land contains a prohibition of a public nature. As the respondent's lot is located in an agricultural region, he has a duty to prove that he is in an exceptional situation covered by the Act.
On the question of the use of rules developed by the courts in cases involving zoning and acquired rights, the respondent seems to me to be correct. The Act itself specifies the circumstances giving rise to acquired rights and other rules developed by the courts accordingly cannot have the effect of conferring acquired rights other than those specified by the Act or of conferring them in a way not contemplated by the Act. The fact remains, as the Court of Appeal held and as the authors cited with approval by the trial judge have concluded, that these other rules can still be useful in cases, for example, where it is necessary to interpret terms not defined by the Act, such as the word "use" in s. 101.
VII - The Substance of the Issue
In my opinion, the trial judge did not err in approaching the interpretation of the words "for a purpose other than agriculture" found in s. 101 by starting with the definition in s. 1(1) and reasoning a contrario. The ruins of a residence, namely stone foundations and wood flooring, are not included in the definition of "agriculture". The surface of the lot in question covered by these ruins was therefore not used for agricultural purposes.
With the greatest respect, where the trial judge erred was in concluding that because the lot was not used for agricultural purposes it was used for a purpose other than agriculture. Section 101 does not recognize acquired rights when a lot is not used for agricultural purposes, but rather when it is used for a purpose other than agriculture. Unused land is not used for agricultural purposes; however, precisely because it is unused, it is also not used for a purpose other than agriculture, as required by s. 101.
There is no question that in the past this lot was used for residential purposes, and so for a purpose other than agriculture; but as the trial judge held, and his finding on this point is not disputed, this use for residential purposes was abandoned when the house the ruins of which remain was demolished in 1976.
As s. 101 provides, recognition of an acquired right results solely from use of the lot "when the provisions of this act . . . were made applicable to that lot", that is, in the case at bar, on the date of the decree, June 13, 1980. Abandoned uses and uses which commenced after that date confer no acquired right.
However, the appellants argued that active use is not necessary to preserve acquired rights, and they rely on Cormier and Sylvestre, op. cit., at pp. 315‑16:
[TRANSLATION] To classify a use as a use for purposes other than agriculture, one has to reason back from the definition given in s. 1(1) of the word "agriculture". As this definition is extremely broad, we are of the view that two criteria must be present for an acquired right to arise: human intervention and a purpose other than agriculture.
. . .
We feel that such intervention can be passive or active; however, there must be no doubt as to its ultimate purpose. The building of a house may be characterized as active intervention. Leaving foundations of a residential nature may constitute passive intervention. In both cases, the purpose definitely is not agriculture.
With respect, these passages contain both a deficiency and an error.
There is a deficiency because the date on which there must be use for a purpose other than agriculture is not taken into account.
As to the error, it lies in the concept of passive intervention and the example given of it, namely "[l]eaving foundations of a residential nature".
In any case, the same authors seem to have modified their position and their example in their text of 1984, Loi sur la protection du territoire agricole: commentaires, décisions, jugements, at pp. 801‑2:
[TRANSLATION] Only activities, improvements, facilities or disruptions resulting from human action for a particular objective which is immediately apparent can create a situation that may be characterized as use for purposes other than agriculture.
. . .
In short, for an acquired right to exist one must characterize the intervention. It may be active (operation of a gravel pit) or passive (foundations constructed for a delayed building project). What is important is that it should be effective so that there is no doubt as to the use intended either initially or ultimately.
It can be seen that the example of passive use has been qualified: the reference is to foundations for a delayed building project. In my opinion, this is not a passive use but an active use temporarily suspended, which does not thereby become passive. If this use is delayed for very long or indefinitely, at some point the active use is abandoned, and this is a question of fact.
I think that the expression "passive use" contains a contradiction in terms. In my opinion, the respondent was correct to write the following in its factum:
[TRANSLATION] . . . as the Act contains no definition of the word "use" (utiliser), one must look at the ordinary and accepted meaning of the term.
Petit Robert defines utiliser as follows:
"render useful, employ for a specific purpose".
The term utilisé ("used") is, again according to Petit Robert, the adjective describing a thing
"the use or employment of which may be beneficial (to someone, to society), or meets a need".
This definition implies both the idea of activity and the idea of an ultimate purpose.
A thing is used if a person makes use of that thing, as opposed to a thing which is unused, of which no use is made or which is abandoned. Use therefore implies effective activity, that is activity which results in a real, concrete and tangible consequence.
A thing is used if use is made of it for a certain purpose, as opposed to an unused thing which is not employed for any purpose. Use therefore involves an ultimate purpose, that is the fact that the activity leads to the achievement of an object.
. . .
We therefore submit, following the Quebec Court of Appeal, that lot 6C of the cadastre of the township of Barnston was unused despite the presence of old foundations. No effective use was made of this lot or of the old foundations located on it.
. . . the right protected by s. 101 is not the right the appellants had up to that date [June 13, 1980] to (re) commence residential use of their property.
It is the right to continue residential use, which they did not do.
In these passages the respondent is in any case only illustrating and amplifying on the following opinion of LeBel J.A. (at p. 1045):
[TRANSLATION] As the legislator has not defined the concept of acquired rights either in s. 101 or elsewhere in the Act, reference must be made to the general rules on the matter. These assume effective use. It is accepted, for example, that the fact of a building being under construction at the time a zoning by‑law comes into effect will be a basis for a non‑conforming use. Conversely, the abandonment of the building or cessation of effective use, especially if it is prolonged, suggests the intent to abandon use of it.
I agree with this opinion.
The abandoned foundations of a house cannot be said to be a non‑conforming use without contradicting the purpose or object of the Act, as inferred from several of its provisions. The purpose of the Act is not only to protect cultivated land but to reclaim land which has agricultural potential. This can be seen, for example, in s. 102, which extinguishes acquired rights in the circumstances mentioned, or in provisions such as s. 31.
Under that section, if the appellant Rémi Veilleux had acquired his lot before the decree was adopted, he would have had a five year period in which to build a single residence and use for that purpose an area not exceeding half a hectare. After that, his lot would fall under the Commission's control.
It is true that s. 101 protects the rights of those who were actually using their land for other than agricultural purposes at the time the Act became applicable to it; but the owner of unused and deserted land does not have a non‑conforming right of use to protect that would justify the exclusion of that land from the ambit of the Act. At the time of the decree, all he has is a right of ownership stripped of any right of use other than that allowed by the Act.
The appellants' argument that the absence of vegetation indicates and preserves the acquired right to use of the lot for purposes other than agriculture cannot be accepted.
First, s. 102, on which they rely, does not apply to an interruption or abandonment of use which occurred before the date on which the Act became applicable to a lot.
Moreover, s. 102 refers to the "right recognized by section 101". As Owen and Beauregard JJ.A. held, this provision makes s. 102 inapplicable, and accordingly makes the presence or absence of vegetation irrelevant, unless acquired rights pursuant to s. 101 are first found to exist. As we saw above, the appellants have not established the existence of acquired rights pursuant to s. 101.
It does not follow that the absence of vegetation is never relevant in the application of s. 101: in view of the definition of "agriculture", such an absence can indicate that a lot is not used for an agricultural purpose; however, as I have tried to demonstrate, the absence of use for an agricultural purpose does not necessarily establish the existence of use for a purpose other than agriculture.
Before leaving the question of vegetation and arriving at my conclusions, which of course are that the appeal should be dismissed, I should like to mention a peculiarity of translation in the Act. I do not think it affects the outcome of the case. Nevertheless, I feel I should say a few words about it, though no one has so far mentioned it.
The equivalent of the expression "laisser le sol sous couverture végétale" in s. 1(1) and in s. 102 in the English version of the Act is the phrases "leaving land uncropped" in s. 1(1) and "left uncropped" in s. 102. "To leave land uncropped" means "not to cultivate land for the purpose of obtaining a crop from it". This is what happens, for example, when land is left fallow so that it can rest and regenerate, although it may cease to be cultivated for other reasons. Eventually, land that is no longer cultivated will be covered with vegetation.
The presence of the English expression in s. 102 may lead to incongruities. To say that the acquired right recognized by s. 101 terminates because the ground is not cultivated for a year has no meaning in the case of a parking lot covered with asphalt and actually used as a parking lot. It may cease being used and it will gradually revert to vegetation, but it would be inaccurate to describe it as "uncropped", that is, as not being cultivated for the purpose of obtaining a crop from it. If the English expression in s. 102 is taken literally, continued use of the parking lot as such would not preserve the acquired right to continue such exceptional use because the land would not be cultivated for over a year. It is inconceivable that the legislator could have intended such a result.
However, I think this difficulty can be resolved in light of the ordinary meaning of the words and the purpose of the Act.
The English expression "to leave land uncropped" suggests essentially that the land not being cultivated is nevertheless suitable for agriculture.
Uncultivated land will be covered with vegetation more effectively and more quickly to the extent it is suitable for agriculture.
The purpose or object of the Act is to protect and reclaim such land. It must be assumed that, by s. 102, the legislator intended to extend the Commission's jurisdiction to land suitable for agriculture, a property which becomes apparent by the growth of vegetation, as indicated in the French expression.
Accordingly, I believe that "uncropped" and "sous couverture végétale" are expressions which both mean "covered by vegetation".
VIII - Conclusions
For the foregoing reasons I would dismiss the appeal.
In its factum the respondent claimed costs.
The Superior Court allowed the appellants' motion without costs, in view of the inconsistent decisions of the Commission on the point at issue, which was submitted to the ordinary courts of law for the first time; and the Court of Appeal allowed the appeal without costs in view of the administrative delays of the Commission which left the appellants with a false sense of security for years.
I would follow the example of the Court of Appeal and the Superior Court and would dismiss the appeal without costs.
Appeal dismissed.
Solicitor for the appellants: Pierre G. Geoffroy, Sherbrooke.
Solicitor for the respondent: Serge Cardinal, Longueuil.
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