Gauthier v. Quebec (Commission de Protection du Territoire Agricole), [1989] 1 SCR 859

Gauthier v. Quebec (Commission de protection du territoire agricole), [1989] 1 S.C.R. 859

 

Marcel Gauthier                 Appellant

 

v.

 

Commission de protection du territoire agricole

du Québec                                                                                                                         Respondent

 

indexed as:  gauthier v. quebec (commission de protection du territoire agricole)

 

File No.:  19620.

 

1987:  May 11; 1989:  April 20.

 

Present:  Beetz, Lamer, Wilson, Le Dain* and La Forest JJ.

 

on appeal from the court of appeal for quebec

 

    Environmental law -- Protection of agricultural land -- Acquired rights -- Permits authorizing use -- Land bought and developed for residential purposes -- Subdivision plan for location of street approved by municipal council -- Subdivision plan for development filed with Department of Lands and Forests -- Part of land located in agricultural zone after adoption of Act to preserve agricultural land -- Development work done in part located outside agricultural zone -- Whether appellant had acquired rights over lots in his residential development located within agricultural zone -- Whether approval of municipal council or filing of subdivision plan, or both, constitutes a permit authorizing use for purpose other than agriculture within meaning of s. 101 of Act -- Act to preserve agricultural land, R.S.Q., c. P-41.1, s. 101.

 

    In 1975 the appellant bought a piece of land intending to turn it into a residential development and began the construction of a street and ditches.  Two years later the municipal council approved by resolution the plan for subdivision of the land used in constructing a street, and the appellant filed the subdivision plan for the entire development with the Department of Lands and Forests in accordance with art. 2175 C.C.L.C.  This subdivision plan was accepted by the Department.  The appellant proceeded with the development work.  He built an electricity and telephone line and a model house.  He also sold several lots.  When the Act to preserve agricultural land came into effect, part of the appellant's land was included in an agricultural zone.  This part, which is the subject of the litigation, though subdivided, had not been developed and had not been the subject of any building permit, sale or promise of sale.  It was fallow land apart from an earth and gravel street extending the street located in the non‑agricultural part of the land.

 

    In order to proceed with his residential development project, the appellant made several requests to the respondent for permission to use his land located in the agricultural zone for purposes other than agriculture and to alienate it.  His requests were denied.  The appellant then applied to the Superior Court asking it to declare that he had acquired rights over the lots located in the agricultural zone.  The Superior Court dismissed the application and the Court of Appeal affirmed the judgment, except as regards the roadbed.  The appeal at bar seeks to determine whether the appellant holds acquired rights pursuant to s. 101 of the Act.

 

    Held:  The appeal should be dismissed.

 

    The appellant does not have acquired rights to proceed with his entire residential project, by virtue of either the use made by him of his land or the permit authorizing use which he says he holds.

 

    Section 101 of the Act to preserve agricultural land requires not only use for non-agricultural purposes but also that such use must be effective and in progress at the time the Act became applicable to the lot in question.  Effective and current use can only be demonstrated by verifiable human intervention that would indicate that the lots are currently being used for a purpose other than agriculture.  However, such effective and current use of a lot does not guarantee the existence of acquired rights to non-conforming use of the lot as a whole.  The second paragraph of s. 101 limits the acquired rights resulting from use for purposes other than agriculture exclusively to the area of the lot actually used.  The concept of the "vocation" of land regarded as a whole is foreign to the Act and cannot be a source of acquired rights.  In the case at bar, looking at the appellant's lots as they were at the time the Act came into effect, it can be seen that they were unoccupied land, which, except for the street, was not being used for any apparent purpose and on which no activity was taking place.  In fact, the use of the appellant's land appears to be use for agricultural purposes, since the word "agriculture" is defined in s. 1(1) of the Act as being, inter alia, "leaving land uncropped".

 

    The approval of his subdivision plan by the municipal council or the filing of this plan with the Department of Lands and Forests, or both, does not constitute a permit authorizing use within the meaning of s. 101.  A permit authorizing use within the meaning of that section must (1) be issued by a body having public powers; (2) be in effect at the time the provisions of the Act became applicable to the lot; (3) mention a specific use for a purpose other than agriculture; and (4) apply to a given lot or surface area.  The approval of the subdivision plan by the council and its filing with the Department do not meet these criteria.  Moreover, whereas a permit authorizing use allows the use requested, a "subdivision permit" is only intended to allow the marking out of a new property or identification of a new lot.  It does not authorize use.

 

    The respondent did not act in a discriminatory manner contrary to s. 15  of the Canadian Charter of Rights and Freedoms  by denying the appellant's requests to use his land for a purpose other than agriculture.  Under s. 12 of the Act, the respondent must take a number of factors into consideration before rendering a decision.  It is the diversity of the facts and circumstances it must consider in arriving at each decision which leads the Commission to authorize some applications and deny others.

 

Cases Cited

 

    Applied:  Veilleux v. Québec (Commission de protection du territoire agricole), [1989] 1 S.C.R. 000; disapproved: Commission de protection du territoire agricole du Québec v. Lefebvre, J.E. 84-720 (C.A.), aff'g J.E. 82-1153 (Sup. Ct.); referred to:  Commission de protection du territoire agricole du Québec v. Rhéaume, [1984] C.A. 542; Commission de protection du territoire agricole du Québec v. Meunier, Sup. Ct. Québec, No. 200-05-003428-79, September 18, 1979; Armand Rémillard Ltée, C.P.T.A.Q., No. 001743, September 13, 1979; Sénécal, C.P.T.A.Q., No. 002464, September 13, 1979; Déland, C.P.T.A.Q., No. 000920, July 20, 1979; Aménagement H.B.M.C. Inc., C.P.T.A.Q., No. 002743, October 20, 1979; Entreprises Village Canadien Inc., C.P.T.A.Q., No. 000714, March 26, 1979; Tremblay, C.P.T.A.Q., No. 010611, April 24, 1980.

 

Statutes and Regulations Cited

 

Act to preserve agricultural land, R.S.Q., c. P-41.1 [formerly S.Q. 1978, c. 10], ss. 1(1), (8) [repl. 1982, c. 40, s. 1(2)], 12, 26, 28, 29 [repl. 1982, c. 40, s. 7], 101.

 

Canadian Charter of Rights and Freedoms , s. 15 .

 

Charter of Human Rights and Freedoms, R.S.Q., c. C-12, s. 6.

 

Civil Code of Lower Canada, arts. 406, 2175.

 

Authors Cited

 

Audet, Jean-Marc.  "Considérations sur la Loi sur la protection du territoire agricole", [1987] R.D.I. 165.

 

Cormier, Louis A. and Louis-V. Sylvestre.  Loi sur la protection du territoire agricole:  commentaires, décisions, jugements.  Montréal:  Wilson & Lafleur, 1984.

 

Glenn, Jane Matthews.  "La protection du territoire agricole au Québec" (1980), 11 R.D.G. 209.

 

    APPEAL from a judgment of the Court of Appeal for Quebec, [1985] C.A. 676, affirming in part a judgment of the Superior Court.  Appeal dismissed.

 

    Marcel Gauthier, on his own behalf.

 

    Serge Cardinal, for the respondent.

 

//Beetz J.//

 

    English version of the judgment of the Court delivered by

 

    BEETZ J. --

 

I - Introduction

 

    Like Veilleux, this case raises the question of acquired rights within the meaning of s. 101 of the Act to preserve agricultural land, R.S.Q., c. P‑41.1 (the Act).  The Act prohibits the use for any purpose other than agriculture, the alienation in certain cases and the subdivision of any lot located in a designated agricultural region or an agricultural zone, without the authorization of the Commission de protection du territoire agricole du Québec (the Commission).  Section 101 creates an exception to this prohibition.  It recognizes acquired rights if a lot was used for a purpose other than agriculture or was under a permit authorizing its use for a purpose other than agriculture when the provisions of the Act were made applicable to that lot.

 

    In the case at bar, a part of the appellant's residential development project is located in an agricultural zone.  The appellant argues that he has an acquired right to proceed with his entire project, by virtue of both the use made by him of his land and the permit authorizing use which he says he holds.

 

II - Facts

 

    In 1975 the appellant bought a piece of land measuring approximately 5,730 by 570 feet, intending to turn it into a residential development.  The first 2,170 feet are located in the village of Mont St-Grégoire, while the other 3,560 feet are located in the parish of St-Grégoire-le-Grand, outside the village limits.

 

    The Act took effect on November 9, 1978.  Under s. 26, the part of the appellant's land located in the parish of St-Grégoire-le-Grand, that is 3,560 feet by 570 feet, was included in a designated agricultural region.  However, as a consequence of Order in Council 2597-80 of August 20, 1980, in effect on September 13, 1980, a permanent agricultural zone was created which leaves out 1,000 feet of the appellant's land that was formerly within the designated agricultural region.  Accordingly, the first 3,170 feet of the appellant's land are located in a non‑agricultural zone and the remaining 2,560 feet in an agricultural zone.

 

    The appellant began the construction of a street and ditches in 1975.  In 1977 the municipal council of the parish of St-Grégoire-le-Grand approved by resolution the plan for subdivision of the land used in constructing a street, and the appellant filed the subdivision plan for the entire development with the Department of Lands and Forests in accordance with art. 2175 C.C.L.C.  This subdivision plan was accepted by the Department.  The appellant proceeded with the work of developing his land and built an electricity and telephone line 2,000 feet long.  Shortly before November 9, 1978, the date on which the Act came into effect, the appellant built a model house and sold several lots.  The model house, the lots sold and the electricity and telephone line are all located in the part of the appellant's land that was to be in a non-agricultural zone.

 

    The remainder of the appellant's land, located in an agricultural zone and the subject of the litigation, though subdivided, had no houses or sewer, water, electricity or telephone service on it, and had not been the subject of any building permit, sale or promise of sale.  It was fallow land on November 9, 1978, apart from an earth and gravel street 1,900 feet long extending the street located in the non-agricultural part of the land.

 

III - Procedural History

 

    Between 1979 and 1983, the appellant made several requests to the respondent for permission to use his land for purposes other than agriculture, and to subdivide and alienate it, in order to proceed with his project on the part of the development designated successively as an agricultural region and an agricultural zone.  Each of these requests was denied.

 

    The appellant then applied to the Superior Court.  His application for declaratory relief on October 21, 1983 contained two conclusions:  first, that the Court declare that the appellant had acquired rights over the lots located in the agricultural zone, and second, that the municipality of the parish of St‑Grégoire‑le-Grand incorporate the location of the street in its town plan and issue building permits for the houses.

 

    The Superior Court dismissed the application on February 21, 1984; this judgment was affirmed by the Court of Appeal on October 22, 1985, except as regards the roadbed.

 

    Hence the appeal.

 

IV - Relevant Legislation

 

    The relevant provisions of the Act read as follows:

 

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 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.

 

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, a railway, a public utility right of way, or the surface of the lot in respect of which there exists a right recognized in virtue of Division IX.

 

    The surface of a lot in respect of which a right is recognized in virtue of Division IX is not deemed contiguous.

 

V - Issue

 

    The question is whether, in light of the foregoing facts, the appellant holds acquired rights pursuant to s. 101 of the Act which permit him to use for purposes other than agriculture, alienate and subdivide without the authorization of the Commission the lots located in the agricultural zone.

 

VI - Decisions of the Courts Below

 

1.  Decision of the Superior Court

 

    Forest J. of the Superior Court found that the appellant's application was clearly without foundation in so far as the conclusions sought against the municipality were concerned.  These conclusions, which would require the municipality to incorporate the location of the street in its town plan and issue building permits, are inconsistent with an application for declaratory relief.  The appellant in any case withdrew these conclusions in the Court of Appeal, where the Commission was the only respondent.

 

    Though the appellant's application was appropriate as regards the existence of acquired rights pursuant to s. 101 of the Act, Forest J. considered that the facts put forward by the appellant could not justify the conclusions sought.  To have acquired rights pursuant to s. 101, the appellant must show either the existence of a permit authorizing use or a use for a purpose other than agriculture.

 

    In Forest J.'s opinion, approval of a subdivision plan does not constitute a permit authorizing use within s. 101 of the Act:  [TRANSLATION] "a permit authorizing use allows the use requested but a subdivision permit serves to delimit the property and does not permit use".

 

    Forest J. also did not find any use for a purpose other than agriculture on which the appellant's application could be based.  The premises in question were vacant:  there had been neither construction nor any sale of land in this part of the development.  Ownership and intent do not suffice to establish an acquired right.  As to the roadbed, the evidence disclosed that it was never used for the purpose for which it was intended.  It was actually a farm road which had never been used for any purposes other than agriculture.

 

2.  Decision of the Court of Appeal

 

    The Court of Appeal affirmed the Superior Court judgment, except as regards the roadbed:  [1985] C.A. 676.

 

    In the view of Montgomery J.A., the existence of acquired rights is largely a question of fact which is primarily for the trial court.  He felt he could not intervene.  However, he agreed with Beauregard J.A. as to the roadbed.

 

    Beauregard J.A. shared the view taken by the Superior Court judge.  The facts in evidence did not establish either that a permit had been issued to use the lots in question for a specific purpose other than agriculture or that actual use for a purpose other than agriculture had commenced.  As to the roadbed, he felt that the appellant had an acquired right to use it as a street (at p. 679):

 

    [TRANSLATION] The fact remains, however, that the appellant has acquired rights to use the lots making up the roadbed as a street if he wishes to do so, and that the trial judgment should have recognized that he had these acquired rights.

 

    L'Heureux-Dubé J.A., as she then was, dissenting, held that the facts established by the appellant met the criteria of s. 101 of the Act both with respect to use for a purpose other than agriculture and with respect to a permit authorizing use.  She cited at length and adopted the reasoning of Nichols J.A., dissenting, in Commission de protection du territoire agricole du Québec v. Rhéaume, [1984] C.A. 542.  In her view, s. 101 should be broadly interpreted so as to protect the right to peaceful enjoyment and free disposition of property.  From this viewpoint, the municipal council's approval of the subdivision plan amounted to a permit for use since that approval gave the appellant's project the "green light".

 

    On the question of use of the land, L'Heureux-Dubé J.A. considered that the work done by the appellant extended to the entire residential development and that, even though there was no physical evidence of such work on the lots located in the agricultural zone, in view of the appellant's objective there was use of the lots as a whole for a purpose other than agriculture within the meaning of the Act.  On this point L'Heureux-Dubé J.A. relied on another judgment of Nichols J., then a member of the Superior Court, in Lefebvre v. Commission de protection du territoire agricole du Québec, Sup. Ct. Drummond, No. 405-05-000120-824, November 10, 1982 (summarized at J.E. 82-1153), later upheld by the Court of Appeal, C.A. Mtl., No. 500-09-00021-832, August 21, 1984 (summarized at J.E. 84-720).

 

    L'Heureux-Dubé J.A. would have allowed the appeal and would have declared that the appellant had acquired rights over all the lots in his residential development located within the agricultural zone.

 

VII - Submissions of the Parties

 

    The appellant's argument is in two parts, corresponding to the two possibilities whereby acquired rights may be enjoyed under s. 101.  The first relates to use of the land.  The appellant argued that, for the purposes of s. 101, the use of his land must be considered in its entirety.  The appellant maintained that from this global point of view the facts, and in particular the work done on the part of the development located outside the agricultural zone, establish that the lots in question were used for residential development purposes, and hence for a purpose other than agriculture.

 

    The second part of the appellant's argument concerns the permit authorizing use he claims to have had before the Act came into effect.  At that time a subdivision plan was prepared and the proposed subdivisions for the street location had been approved by the municipal council of the parish of St‑Grégoire‑le‑Grand.  The plan was filed with the Department of Lands and Forests pursuant to art. 2175 C.C.L.C. and was accepted.  No other permit was required at the time in order to undertake a residential development.  The appellant maintained that the municipal council's approval or the filing of the subdivision plan, or both, constituted a permit authorizing use for a purpose other than agriculture within the meaning of s. 101.

 

    The appellant also made alternative arguments, which I will say a word about below.

 

    As to the existence of a permit authorizing use, the respondent maintained that the approval of a subdivision plan and its filing with the Department of Lands and Forests do not constitute a permit authorizing use within the meaning of s. 101.  The respondent submitted that if approval of the subdivision plan is to be regarded as a permit, then it is a subdivision permit.  The respondent adopted the reasoning of Forest J. at first instance:  subdivision is simply a cadastral operation which has nothing to do with the eventual use of the subdivided land.  The subdivision permit thus cannot be the equivalent of a permit authorizing use required by the Act.

 

    As to the use made by the appellant of his land, the respondent maintained that this use confers acquired rights only over the roadbed built by the appellant.  At the time the Act came into effect, the appellant was not using the lots in question for a specific purpose other than agriculture.  In the respondent's view, the fact that these lots bordered on a street does not suffice to create acquired rights:  the second paragraph of s. 101 of the Act clearly provides that the acquired rights resulting from s. 101 exist only in respect of the surface actually being used, not the property as a whole.

 

VIII - Analysis

 

1.  Introduction

 

    The purpose of a residential development is to prepare land for residential use by other people.  In general the intention of the promoter of such a development is to sell his land gradually, lot by lot, instead of using it himself.  The developed land is often located on the outskirts of a town or village and was part of the agricultural land in the area before the development project was launched.  This situation necessarily gives rise to conflict with the Act, the purpose of which, as its title indicates, is to preserve agricultural land in the province.  In her article "La protection du territoire agricole au Québec" (1980), 11 R.D.G. 209, at p. 211, Professor Jane Matthews Glenn identifies four problems which led to the adoption of the Act.  Among these causes is precisely this process of urbanization and real estate speculation that diverts the development of agricultural land to residential purposes.

 

    As can be seen in three of the cases in the tetralogy to which the case at bar belongs, the conflict between application of the Act and the economic interests of the promoters of residential developments has come before the courts on several occasions in the form of applications for declaratory relief alleging the existence of acquired rights enjoyed by the promoters under s. 101 of the Act.

 

    Unfortunately, these conflicts have given rise to contradictory rulings by the courts.  One line of authority, which includes the judgment of the Court of Appeal in Commission de protection du territoire agricole du Québec v. Lefebvre, supra, [TRANSLATION] ". . . adopts a broad and liberal position focusing on the use of the land as a whole and treating the right of ownership as paramount . . ." (J.-M. Audet, "Considérations sur la Loi sur la protection du territoire agricole", [1987] R.D.I. 165, at p. 177).  The other line of authority [TRANSLATION] ". . . adopts a restrictive interpretation that allows acquired rights to apply only to the part used for purposes other than agriculture".  The second viewpoint is that taken by the Court of Appeal in Commission de protection du territoire agricole du Québec v. Rhéaume, supra.

 

    The facts in the case at bar are similar to those in both Lefebvre and Rhéaume.  As in Lefebvre, the appellant did a significant amount of work in developing his land before the Act came into effect.  As in Rhéaume, the appellant had part of his subdivision plan approved by the municipal council.  He even filed the plan with the Department of Lands and Forests, a fact not found in Rhéaume.  The case is thus at the heart of a conflict in the precedents.

 

2.  Use for a Purpose Other than Agriculture

 

    The solution to any question of the existence of acquired rights necessarily begins with s. 101, which I cite again:

 

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 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.

 

    To begin, I shall deal with the first possibility of acquired rights, namely use for a purpose other than agriculture.  In Veilleux v. Québec (Commission de protection du territoire agricole), [1989] 1 S.C.R. 000, this Court noted that s. 101 requires not only use for non-agricultural purposes but also that such use must be effective and in progress at the time the Act became applicable to the lot in question.  However, effective and current use of a lot does not guarantee the existence of acquired rights to non-conforming use of the lot as a whole.  Moisan J. succinctly describes the effect of the second paragraph of s. 101 in Commission de protection du territoire agricole du Québec v. Meunier, Sup. Ct. Québec, No. 200‑05‑003428-79, September 18, 1979:  [TRANSLATION] ". . . the right to exploit for other than agricultural purposes is limited strictly to the area already used for a purpose unrelated to agriculture".

 

    Section 101 requires that acquired rights be limited to the part of the surface of the lot allegedly used for purposes other than agriculture or over which a "permit authorizing use" is allegedly held at the time the provisions of the Act became applicable to the lot.  This limitation, enacted by the second paragraph of s. 101, is also consistent with the purpose of the Act.  In practice, a "lot", defined by the Act in part as "a parcel of land designated by a separate number on the official plan of the cadastre" (s. 1(8)), can be of a considerable area, especially when it is located in the countryside, while the area used for purposes other than agriculture may represent only a small fraction of its total size.  As the objective sought by the Act is to protect agricultural land, it is hardly surprising that in choosing between the individual interest in the free disposition of property and the public interest in the preservation of agricultural land, the legislator reserved as large a proportion as possible of the area of land protected by the Act for agriculture.

 

    If these criteria are applied to the facts of the case at bar it can be seen, as was found by the Superior Court and affirmed by the Court of Appeal, that the appellant has not succeeded in showing any use of the lots at issue that might support his claim.  Effective and current use can only be demonstrated by verifiable human intervention that would indicate that the lots are currently being used for a purpose other than agriculture.  Looking at the appellant's lots as they were at the time the Act came into effect, it can be seen that they were unoccupied land, which, except for the street, was not being used for any apparent purpose and on which no activity was taking place.  In fact, as the trial judge observed, the use of the appellant's land appears to be use for agricultural purposes, since the word "agriculture" is defined in s. 1(1) of the Act as being, inter alia, "leaving land uncropped".

 

    In his factum the appellant emphasized the importance of regarding his development as a whole so as to include the use of the lots located in the agricultural zone.  It is true that from this global point of view the appellant clearly intended to turn all of his land into a residential development; but as I indicated above, the appellant's development project, like the majority of residential developments, consists of preparing land to sell it to people who will build houses on it.  The appellant never intended to use, and never personally used, his land in a way that was both real and perceptible.  I do not think that the intent to sell can be a "use for a purpose other than agriculture".

 

    A brief comment must be made regarding Lefebvre v. Commission de protection du territoire agricole du Québec, supra.  With respect, I feel that the Superior Court judgment in that case, upheld by the Court of Appeal, is in error.  In Lefebvre, the promoter carried out more or less the same development work as the appellant in the instant case at the time the Act became applicable.  The only difference between the two cases is that Mr. Lefebvre had not subdivided his land, as he preferred to sell the lots by metes and bounds.  The essence of the reasoning of Nichols J., as he then was, appears from the following passages from his opinion (at pp. 12-13):

 

    [TRANSLATION] Acquired rights must be assessed not only in terms of the extent and significance of the work done by an owner but also in terms of the purpose contemplated.

 

                                                                          . . .

 

The significance of the work taken together with its extent had the effect of changing the vocation of these two lots before the Act to preserve agricultural land came into effect.  The fact that some proposed sites or lots were left fallow does not prevent the change of vocation.

 

    It is true that the purpose contemplated by an owner when he has work done is important in applying s. 101 of the Act.  However, this importance is linked to the "agricultural or non-agricultural" characterization of the use of the lot.  Without use for a purpose other than agriculture, there can be no acquired right under the Act; but even if there were such an effective and current use at the time the Act came into effect, I repeat that the second paragraph of s. 101 limits the acquired rights resulting from this use exclusively to the area of the lot actually used.  The wording of s. 101 is clear:  only use for a purpose other than agriculture confers acquired rights.  The concept of the "vocation" of land regarded as a whole is foreign to the Act and cannot be a source of acquired rights.

 

    The respondent made the following arguments on these points in its factum:

 

    [TRANSLATION] If there is such a thing as residential (or commercial, industrial, institutional and so on) use, there is no such thing as "residential development" use.  A residential development is only the sum total of areas of land individually used for residential purposes (and incidental purposes such as roads providing access to those residences) and constitutes a whole only in the promoter's mind.  For acquired rights to residential use to exist, it must be shown, under the second paragraph of s. 101, that each of the subdivided lots or the unsubdivided residual part of the lot was individually used for residential purposes.

 

                                                                          . . .

 

. . . in the instant case, to find that acquired rights exist not only would the Court have to find that the intent to build suffices to create such a right, but it would also have to consider the intent of unknown third parties whose interest is not yet manifest, as the appellant's intent here is to sell to a third party who will presumably have the intent, formed after the Act, to build.

 

    In my view, these arguments are correct.

 

3.  Permit Authorizing Use for a Purpose Other than Agriculture

 

    The second argument raised by the appellant to justify the existence of acquired rights under the Act is the "permit authorizing use for a purpose other than agriculture".  Here again, the criteria that must be met are derived from s. 101.  Louis A. Cormier and Louis-V. Sylvestre find that there are four:  (1) the permit must be issued by a body having public powers; (2) the permit must be in effect at the time the provisions of the Act became applicable to the lot; (3) the permit must mention a specific use for a purpose other than agriculture; (4) the permit must apply to a given lot or surface area (Cormier and Sylvestre, Loi sur la protection du territoire agricole:  commentaires, décisions, jugements (1984), at p. 802).  Cormier and Sylvestre's analysis seems correct to me:  from the standpoint of the existence of acquired rights under s. 101, the permit authorizing use is equivalent to actual use; a permit for use which is specific as to the use and the area to which it applies is the equivalent of effective and current use for a purpose other than agriculture.

 

    The appellant maintained that the approval of his subdivision plan by the municipal council or the filing of this plan with the Department of Lands and Forests, or both, constituted a permit authorizing use within the meaning of s. 101.

 

    The resolution of the municipal council on February 7, 1977 approving the appellant's subdivision plan reads as follows:

 

    [TRANSLATION] It is unanimously resolved that the municipal council of the parish of St-Grégoire-le-Grand approves the subdivision plan for part of lots 184, 185 and 186 in the cadastre of the parish of St-Grégoire-le-Grand, subdivisions having Nos. 184-3, 185-1, 186-1 and 186-2, on plan No. 3205-3 prepared by Messrs. Madore & Madore, surveyors.

 

    Adopted.

 

    The subdivisions mentioned in the text of the resolution are for the street alone.  However, even if the resolution referred to all the lots in question, such approval would not meet the requirements of the Act:  there is no mention of specific use for a purpose other than agriculture.

 

    The same is true of the filing of a subdivision plan with the Department of Lands and Forests (now the ministère de l'Énergie et des Ressources).  Article 2175 C.C.L.C. read as follows at the time the appellant filed his subdivision plan:

 

    2175.  Whenever the owner of a property designated upon the plan or book of reference subdivides the same into town or village lots, he must deposit in the office of the Minister of Lands and Forests a plan and book of reference certified by himself, with particular numbers and designations, so as to distinguish them from the original lots; and if the Minister of Lands and Forests finds that such particular plan and book of reference are correct, he transmits a copy certified by himself to the registrar of the division, and to the clerk or the secretary-treasurer of the municipality within the limits of which is situated the subdivided property.

 

    This provision indicates that the filing of a subdivision plan does not constitute a permit authorizing use.  It is only a formal procedure serving to certify the description of a piece of land.  If the Minister finds that the plan is correct, he must certify it; he has no power to authorize or prohibit the use of this land for any purpose.

 

    As did L'Heureux-Dubé J.A., the appellant suggested that the absence of a definition of the term "permit authorizing use" in the Act creates an ambiguity.  As there is no definition of the term "permit authorizing use", it falls to the court to determine the meaning of the term.  In the appellant's submission, the Act affects the rights of individuals and the court should give the expression a broad interpretation which would respect the property rights enunciated and protected by art. 406 C.C.L.C. and s. 6 of the Charter of Human Rights and Freedoms, R.S.Q., c. C-12.  The appellant referred to the dissenting opinion of Nichols J.A. in Rhéaume, supra, followed by L'Heureux-Dubé J.A. in the instant case.  Nichols J.A., seeking to resolve the ambiguity of the term "permit authorizing use" so as to respect individual rights, held that the approval of a "proposed plan" for a subdivision was the equivalent of a "permit authorizing use" for purposes of a residential development:

 

    [TRANSLATION] In this regard approval of the proposed subdivision plan by the town council . . . gave the green light to the respondent to proceed with his residential development project.  In this sense it can be said that the approval was for him a permit authorizing use.  In the ordinary sense of the word, a "permit" ("permis") is a written official authorization (Petit Robert, 1981 edition).  Approval by resolution corresponds to this definition.

 

(Rhéaume, supra, at p. 545.)

 

    However, the nature of a permit is such that it authorizes what is otherwise prohibited by law.  The development of land for residential purposes was not prohibited before the Act came into effect.  Accordingly, there could be no permits authorizing use for residential development purposes.

 

    In using the term "permit authorizing use", the legislator did not intend to create a hitherto unknown type of permit.  In Rhéaume, Mayrand J.A. explained the use of the term "permit authorizing use" (at p. 547):

 

    [TRANSLATION] Whether the permit authorizing use is issued under a provincial or federal statute or under a regulation adopted pursuant to a statute, s. 101 of the Act to preserve agricultural land had to use a general expression covering the various permits required to use land for a specific purpose.  [My emphasis.]

 

    I concur in the opinion of Mayrand J.A.  I see nothing in the wording of s. 101 of the Act that can justify an interpretation of the phrase "permit authorizing use" according to which the approval of a subdivision plan by a municipal council would constitute a permit authorizing use.  It is true that at the time the Act came into effect, no "permit authorizing use" existed which could be issued by the municipality.  There was nothing at that time prohibiting the appellant's residential development and so he needed no permit.  It is also true that at that time approval of the subdvision plan for the laying of the street by the municipal council gave the appellant's project the "green light".  However, this "green light" does not meet the criteria of a permit authorizing use within the meaning of s. 101 of the Act, and cannot confer any acquired right to non-conforming use by the appellant.  It is well-settled law that the mere absence of a prohibition in the past creates no acquired rights in respect of legislation subsequently enacted.

 

    Further, on the question of the permit authorizing use, the following arguments of the respondent seem to me to be relevant and valid:

 

    [TRANSLATION] Whereas a permit authorizing use allows the use requested, such as a building permit which allows the construction of a residence in accordance with given standards, a subdivision permit is only intended to allow the marking out of a new property or identification of a new lot and does not authorize use.

 

    It only allows an owner to divide his land into one or more parcels provided the proposed lots meet the standards dealing with area, location and so on . . .

 

. . . this distinction between subdivision and use (and so between a subdivision permit and a permit authorizing use) follows from the Act itself, which deals with the two ideas separately throughout.

 

    Accordingly, the act of subdivision and that of using for purposes other than agriculture are two legal facts covered by two separate prohibitions, in ss. 28 and 26.

 

    Subdivision and use are two distinct acts that a person may perform under s. 101 if he meets the criterion regarding use or a permit authorizing use.

 

                                                                          . . .

 

    Under s. 101 use which has become non-conforming gives the right to subdivide, not the reverse.

 

4.  Discrimination

 

    As an alternative argument, the appellant accused the respondent Commission with acting in a discriminatory manner contrary to s. 15  of the Canadian Charter of Rights and Freedoms  by not rendering a decision favorable to his application for authorization based on s. 43 of the Act, in light of its decisions in Armand Rémillard Ltée (a decision of September 13, 1979, case No. 001743); Sénécal (a decision of September 13, 1979, case No. 002464); Déland (a decision of July 20, 1979, case No. 000920); Aménagement H.B.M.C. Inc. (a decision of October 20, 1979, case No. 002743); Entreprises Village Canadien Inc. (a decision of March 26, 1979, case No. 000714); and Tremblay (a decision of April 24, 1980, case No. 010611).

 

    The fact that the respondent Commission rendered different decisions in different cases is not proof of discrimination.  Under s. 12 of the Act, the Commission must take a number of factors into consideration before rendering its decision.

 

12.  In rendering a decision or giving its advice on a matter referred to it, the commission shall particularly take into consideration the biophysical conditions of the soil and of the environment, the possible uses of the lot for agricultural purposes and the economic consequences thereof, and the repercussions that the granting of the application would have on the preservation of agricultural land in the municipality and the region, and on the homogeneity of the farming community and farming operations.

 

    It is the diversity of the facts and circumstances it must consider in arriving at each decision which leads the Commission to authorize some applications and deny others.  The appellant did not show that the right to equality enshrined in s. 15  of the Canadian Charter of Rights and Freedoms  has been infringed.

 

5.  Conclusion

 

    It is true that if the appellant has no acquired rights to use, alienate and subdivide his land without the authorization of the Commission, and the Commission has already refused such authorization, the lots in question will lose much of their value.

 

    This effect of the Act may seem unfair, especially when the promoter perfectly legally invested large sums of money and time in his project.  Nevertheless, the legislator felt it necessary, in order to attain the object of the Act, to enact a general prohibition against the use for purposes other than agriculture, the alienation and the subdivision of any lot located in an agricultural zone without the Commission's authorization.  While protecting acquired rights in accordance with relatively traditional criteria such as a non‑conforming use or permit, limited it is true to part of the surface area of the lot, the legislator also left consideration of any proposed non-conforming use to a specialized tribunal, the Commission, that would have the task of assessing the effects of any proposed non-conforming use on agricultural land in the province.  The courts, like the individual, must respect the will of the legislator.  It is not their function to temper the rigour of the Act.

 

IX - Conclusion

 

    The respondent did not claim costs in this Court.  I would dismiss the appeal without costs.

 

    Appeal dismissed.

 

    Marcel Gauthier,  on his own behalf.

 

    Solicitors for the respondent:  Cardinal, Landry, Longueuil.