Public Law Promissory Estoppel Clarified: Immeubles Jacques Robitaille Inc v Quebec
Earlier this year, Justice Wagner provided a concise and well-reasoned answer to an interesting question: Having operated a business for a decade in violation of a zoning bylaw, does a company have an acquired right of non-compliance? In Immeubles Jacques Robitaille inc v Québec (City), 2014 SCC 34, Wagner J. found that a business is not able to rely on a municipality’s actions (or inaction) to defend itself against a charge that it operated in contravention of a bylaw.
Facts and Judicial History
In 1998, Les Immeubles Jacques Robitaille Inc. (“Robitaille”) acquired a property on Côte d’Abraham in Quebec City (“City”). The property had been used as a commercial parking lot since 1995, though this use was prohibited by a 1979 municipal bylaw. Upon acquiring the property, Robitaille continued operating it as a parking lot.
In 2008, the City sent Robitaille a statement of offence for having allowed or tolerated a use of its property that contravened the zoning bylaw. It was a strict liability offence that carried a minimum fine of $200.
During the decade that Robitaille operated the property as a parking lot, it entered into a several agreements with the City. This included the City’s purchase of portion of the property in which the deed for sale provided for “preservation of the vendor’s present rights.” The City also agreed to compensation paid for having to relocate parking spaces because of the relocation of a major highway. Municipal taxes levied and collected were at a rate corresponding to the commercial use.
At Municipal Court, Robitaille admitted to the improper use, but argued that the City’s actions had established acquired rights. A witness for Robitaille stated that the parking spaces had been rented informally since 1970. This was the only evidence to support arguments concerning the use of the property as a commercial parking lot before 1979 and was dismissed by the judge as hearsay.
The Municipal Court held that the City’s toleration of the use over the years could not be basis for a finding of acquired rights. Robitaille was fined $200.
Robitaille appealed the conviction to the Quebec Superior Court and again raised the issue of acquired rights. It was unsuccessful. It then raised the doctrine of estoppel, arguing that the City’s decision to opt for penal rather than civil proceedings through section 227 of Quebec’s An Act respecting land use planning and development, chapter A-19.1, prevented it from pleading this defence. This was accepted by the judge, who found reasonable doubt in Robitaille’s favour.
The Court of Appeal allowed the City’s appeal and restored the conviction. It held that the trial judge erred in law, and found he had no choice but to convict Robitaille once he was satisfied it had commitment an offence and could not validly claim to have acquired rights. Robitaille appealed.
Estoppel and Strict Liability Offences
Justice Wagner pointed out that in a public law context, promissory estoppel requires “proof of clear and unambiguous promise made to a citizen by a public authority in order to induce the citizen to perform certain acts.” In addition, “the citizen must have relief on the promise and acted on it by changing his or her conduct” (para 19).
Yet, he went on to add that the doctrine of public law estoppel must yield an overriding public interest and may not be invoked to prevent the application of an express legislative provision.
Wagner J. gave no weight to the previous agreements undertaken by Robitaille and the City. As in Ontario, municipalities in Quebec are under no obligation to ensure compliance with their zoning by-laws and cannot be compelled to enforce them. They are also not permitted to grant citizens a right to non-conforming uses.
The 1979 by-law is clear, creates a strict liability offence on grounds related the public interest, and does not authorize the municipality to consent to non-conforming uses. As a result, the doctrine of estoppel cannot be relied on.
Municipal Choice in Penal and Civil Recourses
Wagner J. also rejected Robitaille’s argument that the City’s decision to proceed through penal (rather than civil recourse) prevented it from pleading a potentially viable ground of defence. He stated that the legislature has given municipalities two types of resources for enforcing zoning bylaws, and that a municipality is free to use either:
This duality of recourses is a legislative choice that must be preserved and that is not a source of injustice. Each recourse is clearly defined and they have different purposes. Whereas the purpose of the penal proceeding is essentially to punish past conduct… the civil proceeding can result in an order that a particular use cease for the future, although more complex and costly (para 32).
Further, the mere possibility that a court will refuse to order a cessation of a non-conforming use under section 227 does not raise a reasonable doubt to the person’s guilt in a different proceeding in a penal context.
Immeubles Jacques Robitaille Inc v Quebec makes it clear that owners of property being used in contravention of municipal bylaws should be cautious when attempting to establish an acquired right to do so. Further, it is within the authority of municipalities to determine whether to use penal or civil recourses for a bylaw infringement.