2011 QCCA 1231, 2011 QCCA 1231

Carrier c. Québec (Procureur général) 2011 QCCA 1231 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-09-007063-107 (200-06-000115-090) DATE: July 4, 2011 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. JULIE DUTIL, J.A. GUY GAGNON, J.A. CHARLES CARRIER, MAURICE FILION, RÉAL MALTAIS APPELLANTS – Petitioners v. ATTORNEY GENERAL OF QUEBEC RESPONDENT – Respondent JUDGMENT [ 1 ] The appellants appeal from a judgment rendered on May 17, 2010, by the Superior Court (the Honourable Mr.

Justice Gilles Blanchet), which dismissed their motion for authorization to bring a class action; [ 2 ] For the reasons of Gagnon J.A., with which Doyon and Dutil JJ.A. agree; THE COURT : [ 3 ] ALLOWS the appeal, with costs; [ 4 ] SETS ASIDE the trial judgment and renders the judgment that should have been rendered; [ 5 ] AUTHORIZES the bringing of the class action described in the amended motion to institute proceedings, with costs in the cause; [ 6 ] ASCRIBES the status of representative to appellants Charles Carrier, Maurice Filion, and Réal Maltais for the purpose of bringing the class action on behalf of the group described below: All natural persons residing or who did reside, during the three (3) years prior to the bringing of this action (May 1, 2009), in a perimeter bounded to the west by the northbound Laurentian Autoroute (A73 north), to the east by a boundary located 300 metres east of the northbound Laurentian Autoroute (A73 north), to the north by Jean-Talon Boulevard, and to the south by De l'Atrium Boulevard, at the following addresses: - 9175 to 9415 and 8330 to 9380 Trudelle Avenue; - 9445 to 9495 Grondin Avenue; - 8924 to 8936, 8885 to 8939 and 8888 to 8908 Place Le Marsan Street; - 785 to 995 and 800 to 930 De Nanteuil Street; - 8615 to 8685 and 8620 to 8700 Jacques-Prévert Avenue; - 8615 to 8725 and 8770 to 8610 De Beauvoir Avenue; - 765 to 965 and 730 to 960 Clairval Street; - 695 to 995 and 760 to 960 Bienvenue Street;

- 8505 to 8585 and 8510 to 8580 De Choiseul Avenue; - 570 to 780 and 595 to 585 Valdôme Street; - 8480 to 8490 and 8485 to 8495 Chambéry Street; - 575 to 635 and 540 to 580 De Chantelle Street; - 8135 to 8325 and 8170 to 8340 Place Colombelles Street; - 605 and 615 81st Street West; - 7670 to 7850 and 7615 to 7955 Paiment Avenue; - 7620 to 7970 and 7635 to 7945 Beaudry Avenue; - 625 to 665 and 620 to 660 Proteau Street; - 7150 to 7880 and 7161 to 7895 Doucet Avenue; - 585 to 635 and 574 to 624 76th Street West; - 7140 to 7320 and 7115 to 7325 Germain Avenue; - 7023 to 7115, 7018 to 7080 and 7009 to 7121 Mont-Clair Avenue; - 7005 to 7095 and 7100 to 7140 Cloutier Boulevard; - 7210 to 7410 and 7225 to 7365 Verchères Avenue; - 7100 and 7115 Paul-Comtois Avenue; - 6353 to 6505 and 6500 to 6560 Place Mirande Street; - 6425 to 6455 and 6380 to 6430 Clairbonne Street; - 585 to 615 and 570 to 620 Barraute Street; - 555 to 615 De Caraquet Street; or any other group that the Court may determine; [ 7 ] IdentifieS the following as the principal questions of law and fact to be addressed collectively : (

a) Is the respondent contravening

article 976 C.C.Q. ? (

b) Is the respondent contravening

article 1457 C.C.Q. ? (

c) Is the respondent contravening sections 19.1 and 20 of the Environment Quality Act ? (

d) Is the respondent contravening sections 6 , 46.1 , and 49 of the Charter of human rights and freedoms ? (

e) Is the respondent contravening the policies and directives concerning noise pollution caused by road traffic? (

f) Did the respondent commit a fault by neglecting to take the measures incumbent upon him to reduce or eliminate the noise pollution endured by the members? (

g) Is the respondent a [ translation] “ neighbour” of the members of the group? (

h) To what noise level are the members of the group subjected because they neighbour Highway 73? (

i) What annoyances do the group members endure because they neighbour Highway 73? (

j) Can the annoyances endured by the group members be considered [ translation] “ abnormal and excessive”? (

k) Are all the members of the group subjected to [ translation] “ abnormal and excessive” annoyances? (

l) Did the respondent fail to take the necessary measures to reduce or eliminate the noise pollution endured by the members? [ 8 ] IdentifieS the following as the related conclusions sought: • GRANT the petitioners’ motion; • GRANT the petitioners’ class action on behalf of all the members of the group; • DEclare that the respondent is contravening

article 976 C.C.Q. ;

• DEclare that the respondent is contravening

article 1457 C.C.Q. ; • DEclare that the respondent is contravening sections 19.1 and 20 of the Environment Quality Act ; • DEclare that the respondent is contravening sections 6 , 46.1 , and 49 of the Charter of human rights and freedoms ; • DEclare that the respondent is contravening the policies and directives concerning noise pollution caused by road traffic; • DEclare that the respondent committed a fault by neglecting to take the measures incumbent upon him to reduce or eliminate the noise pollution endured by the members; • OrdER that the respondent take the necessary measures to reduce the noise pollution in the intended [ translation] “perimeter” to the acceptable noise level of less than 55 dBA (Leq 24h), at his own expense, within six months of the judgment to be rendered; • ORDER the respondent to pay to each member of the group the sum of ten thousand dollars ($10,000) per year, for the past three years, subject to amplification, until the neighbourhood disturbances alleged herein cease, with interest at the legal rate plus the additional indemnity provided for in

article 1619 C.C.Q. , calculated as of the assignment; • THE WHOLE with costs, including the cost of expert reports, investigation and publication of the notices to the members; [ 9 ] DEclareS that unless excluded, the members of the group shall be bound by any judgment to be rendered on the class action, as provided by law; [ 10 ] FixeS the exclusion period at 30 days from the date of publication of the notice to members, upon expiry of which the members of the group who will have failed to avail themselves of the means of exclusion shall be bound by any judgment to be rendered; [ 11 ] OrdERS the publication of a notice to the members of the group pursuant to

article 1006 C.C.P. according to the terms and conditions to be determined by the judge trying the case; [ 12 ] REFERS the record to the Chief Justice of the Superior Court to determine the district in which the class action should be brought as well as to designate the judge who will hear the case; [ 13 ] OrdERS the clerk of the Superior Court, should the class action be instituted in another district, to forward the record, once a decision has been made by the Chief Justice, to the clerk in that other district. FRANÇOIS DOYON, J.A. JULIE DUTIL, J.A. GUY GAGNON, J.A. Mtres Michel C.

Chabot and Hugo Poirier Gravel Bernier Vaillancourt For the appellants Mtre Pascal Painchaud Chamberland Gagnon For the respondent Date of hearing: February 8, 2011 REASONS OF GAGNON J.A. [ 14 ] The appellants are residents of the Charlesbourg borough in Quebec City. They are exasperated by the noise caused by the heavy vehicular traffic on the Laurentian Autoroute, which passes through the area in which they live.

After unsuccessfully requesting that the manager of the highway, namely the Ministry of Transport, get involved and implement noise reduction measures, and tired of the fight, they decided to bring a class action against the Attorney General of Quebec (the respondent). The Superior Court refused to grant the motion for authorization, hence this appeal. [ 15 ] The trial judge considered that the prima facie case criterion was not met.

On the grounds that it was up to the State, and the State alone, to decide what proportion of the public treasury should be assigned to each of the projects it accepts, he was of the opinion that the issues raised by the appellants were stemmed from the area of political decisions. On that basis, he dismissed the projected class action.

Background [ 16 ] The appellants’ efforts to reduce the annoyances they must endure go back a number of years. After the Laurentian Autoroute was inaugurated in 1963, a large number of the residents of the former city of Charlesbourg asked the municipal authorities, in a first petition dated October 6, 1985, to implement ways to reduce the noise resulting from road traffic. The Ministry of Transport agreed to join a project to reduce noise, shouldering up to 50% of the cost of the work, provided, however, that the city of Charlesbourg assumed the other half of that cost.

The city refused to commit to the project because it considered that the problem of noise pollution was first and foremost the responsibility of the Ministry of Transport. [ 17 ] On October 3, 1988, the citizens filed a second petition with the city of Charlesbourg, signed by 751 residents . This mark of their disenchantment was also forwarded to the Ministry of Transport. [ 18 ] On February 5, 1990, the City finally agreed to contribute to implementing a noise reduction measure by agreeing to pay half the cost of the necessary improvements for this purpose.

Its acceptance was conditional, however, on the project being spread out over two years instead of one. Unfortunately for the residents concerned, the idea would never come to fruition. [ 19 ] On March 3, 1993, pursuant to

section 2 of the Act respecting Roads , [1] management of the

section between De l'Atrium and Jean-Talon boulevards (the area concerned in the class action) became the responsibility of the Minister of Transport. [2] The Act stipulates that the Minister, as manager, may exercise all the rights of an owner with regard to the highway and “ assume all the related obligations”. [ 20 ] In 1994, the Ministry of Transport implemented an environmental policy that listed reducing the noise from the use of the transportation infrastructure among its objectives. [3] In the context of this policy, the Minister listed the ways it would go about achieving its goals in a brochure entitled Combattre le bruit de la circulation routière . [4] [ 21 ] A second policy, this one specifically about the phenomenon of traffic noise, was adopted in March of 1998.

It provided for two separate methods: one that was corrective and another that was based on integrated planning.

The first dealt with existing sensitive areas and the second applied to new home, institutional, or recreational construction projects. [5] It was more prospective than curative. [ 22 ] In consultation with the municipalities, the corrective method purports to mitigate the sound problems related to the road network when the noise level was greater than or equal to 65 dBA (Leq 24 h). [6] The policy stipulates that municipalities would be required to pay up to 50% of the cost of the mitigation measures, provided, of course, that they are willing to get on board. [ 23 ] Integrated planning, for its part, invited the regional county municipalities to determine the traffic routes likely to adversely affect general well-being.

Depending on the results of this process, the RCMs would suggest minimum zoning rules to the municipalities so that they could adopt by-laws to reduce the effects of road traffic noise.

Two approaches are recommended: one intended to be prescriptive, which considers prohibiting home construction near highways, and the other based on performance standards that stipulate that the noise level near traffic lanes crossing certain residential areas must not exceed a threshold considered critical. [ 24 ] According to the integrated planning method, the acceptable noise level in so-called sensitive zones is established at 55 dBA Leq 24h.

The policy provides that the entire cost of implementing noise reduction measures as a result of the application of this method must be borne by the local municipalities or their partners. [ 25 ] Twelve years after this policy was adopted, on April 25, 2007, the Ministry of Transport and the city of Quebec asked the firm of Desseau Soprin to perform a study of the noise pollution on the

section of highway concerned in the motion for authorization (the Desseau Soprin report). The study considered that 46 of the 484 homes it examined were experiencing a level of noise pollution of at least 65 dBA Leq 24 h. [7] It concluded that it would be pertinent to implement various measures to correct the situation, including building a noise barrier. Nothing was done following the report. Judgment a quo [ 26 ] The trial judge analyzed the proposed class action suit according to the criteria set out in

article 1003 C.C.P.

In application of the first paragraph of this provision, he stated that he was of the opinion that the questions of law and of fact were the same for all the members of the group and, while certain members might differ from the group as a whole on certain points, these singularities could in any case be resolved by the court’s limiting the group with regard to the evidence or dividing it up into subgroups based on specific characteristics. [ 27 ] Furthermore, the judge considered it [ translation] “ doubtful” that a class action was the appropriate procedure to implement the conclusions of the motion to institute proceedings.

He noted that 209 of the 497 homes (42%) concerned in the class action experienced a noise level greater than or equal to 55 dBA, which is the acceptable noise level suggested by the appellants. The judge mentioned, however, that the motion for authorization relied on a presumed obligation on the part of the State to act when the noise- related nuisance level exceeds 65 dBA, which only affected 46 of the homes.

Without answering the question in the affirmative, he opined that the number of homes affected by the 65 dBA standard called into question the very appropriateness of the procedural vehicle chosen by the appellants. [ 28 ] The final criterion on which the analysis is based, namely a prima facie case, is in the judge’s opinion fatal to the appellants. The respondent maintains that any compliance with the orders sought by the group to compel him would belong to the sphere of so-

called political decisions. The judge accepted this defence at the authorization stage and dismissed the appellants’ motion on the ground that: [ translation] [53] It is therefore not up to the judiciary to dictate a line of conduct to the executive or legislative branches in choosing which social objectives should be achieved, setting which social priorities should be met, or determining how much money should be earmarked for a specific cause… [8] [ 29 ] He adds that the policies of the Ministry of Transport on which the appellants rely in

part cannot be used as a basis for their class action. They are merely policies that feature guidelines which case law has refused to endorse as creating a right in favour of the administered. Consequently, they are not binding. Grounds for appeal [ 30 ] The grounds for appeal raised by the appellants can be summed up as a critique of the analysis performed by the trial judge of the criteria mentioned in paragraphs (

b) and (

c) of

article 1003 C.C.P. For his part, even if the respondent concurs with most of the reasons of the judgment in appeal, he asks us to examine the judge’s finding that the motion for authorization meets the criterion of relatedness set out in paragraph 1003 (

a) C.C.P. [9] Analysis [ 31 ] Lest we forget, a class action is nothing more than an ordinary procedural vehicle whose criteria to determine whether it may be granted rely on a broad and liberal

interpretation. [10] At the authorization stage, the law does not require [ translation] “a complete, clear and unequivocal demonstration of the validity” [11] of the right being claimed; only prima facie evidence is required. 1) Prima facie evidence (article 1003 (

b) C.C.P. ) [ 32 ] The respondent’s liability is sought for causing his neighbours to suffer abnormal annoyances that exceed the limits of tolerance. Thus, the appellants have based their class action on the no-fault liability scheme in respect of neighbourhood disturbances (article 976 C.C.Q. ) caused by an excessive nuisance, namely, the noise of vehicular traffic . [12] Also, they allege certain facts that tend to show that the respondent has by omission violated the standard of reasonable behaviour to which he is subject (article 1457 C.C.Q. ). To support their claim, the appellants also argue

section 19.1 of the Environment Quality Act [13] and sections 6 , 46.1 , and 49 of the Charter of human rights and freedoms . [14] (

i) State immunity [ 33 ] The judge settled the matter of the respondent’s liability by stating that, in his opinion, the respondent could not be held accountable because the State benefits from immunity resulting from the application of the rule respecting [ translation] “political” decisions.

He wrote: [ translation] [64] That being said, the constitutional immunity in question here protects the State with regard to decisions or orientations it has taken within the political sphere… [15] [ 34 ] In spite of the deference our Court must show towards the trial judge’s assessment on the matter of authorizing the class action, I consider, in this case, that the judge was too exacting in his analysis of the criterion concerning a prima facie case by prematurely giving precedence to a defence against the allegations in the motion, which at that stage should have been found as fact. [ 35 ] First of all, the schemes inherent to reviewing the lawfulness of State decisions should not be confused with the scheme of civil liability. [16] Since the enactment of

article 1376 C.C.Q. , the rules contained in the book on obligations apply to the State. If the State intends to avoid the general rules of civil liability by invoking immunity from public law in order to discharge its obligations, it then has the burden of showing that this ground of defence applies to its situation: [31] …The civil law principles of civil liability now apply, as a rule, to wrongful acts by such bodies.

It therefore belongs to the party which intends to rely on the public law in order to avoid or to limit the application of the general rules of civil liability to establish, where the need arises, that there are relevant public law principles that prevail over the civil law rules. [17] [ 36 ] Indeed, there is no indication that this rule should be applied differently when the State’s liability is sought pursuant to the no- fault liability scheme set out in

article 976 C.C.Q. [ 37 ] At the authorization stage, when the sufficiency of the evidence is assessed only in a prima facie manner, as a rule, it is premature to find that an immunity defence applies in favour of the State. What amounts to one of several grounds of defence, the immunity argued in this case by the respondent cannot, in considering the authorization, be raised to the ranks of grounds for dismissal.

Failing a finding that the motion is prima facie frivolous or bound to fail or else that the facts alleged are insufficient or that it is [ translation] “undisputable” that the right claimed is without merit, it seems to me that, apart from these circumstances, it is not advisable at the start of the analysis to decide the absolute value of such a defence.

[ 38 ] The respondent refers to Cilinger v. Quebec (Attorney general) to argue that he can successfully assert this ground at the authorization stage. [18] He is partly right, but a careful reading of the reasons of Gendreau J.A. reveals that this assertion should be nuanced.

The following passage confirms the limits of the respondent’s proposal: [ translation] [11] However, the allegations in the proceeding that support this general assertion of wrongful acts do not reveal any negligence in the conduct of the hospitals or of the Ministry of Health … [16] … It is therefore undisputable , as the first judge decided, that the debate is situated in the political sphere and is consequently beyond judicial action. [19] [Emphasis added.] [ 39 ] It is generally admitted that the line between “policy” and “operational” decisions is often difficult to draw. [20] It is for this reason that, as a general rule, immunity defences call for a painstaking and thorough analysis of the evidence. [ 40 ] In Rouleau v.

Canada (Attorney general) , the petitioners claimed that the federal and provincial governments had been negligent in auditing limited partnerships that were alleged to have swindled investors. [21] The Superior Court did not allow a class action to be brought against the State on the ground that the State had immunity in respect of its liability regarding the legislation it adopts.

Baudouin J.A., on behalf of the Court, wrote: [ translation] I consider that at this stage in the proceedings, there is at least a strong prima facie case that prevents me from stating that the class action is clearly without merit. [22] [ 41 ] In Association pour le Lac Heney v. Gestion Serge Laferrière inc. , [23] after the trial judge had accepted at the authorization stage an immunity defence based on the rule of discretionary political decisions, the Court allowed the appeal on the ground that [ translation] “a strong prima facie case concerning the Attorney General of Quebec existed (1003(

b) C.C.P. )”. [ 42 ] In Ouimette v. Canada (Procureur général) , [24] Vézina J., as he then was, faced with the State's argument that its decisions fell within the political sphere, wrote that: [ translation] [44] Deciding whether the federal government is liable for the erosion is [translation] “a question of mixed law and fact” common to all riparian landholders, and sufficiently important to authorize the action... [25] [ 43 ] To the same effect, Courteau, J., in Le petit train du nord [26] was of the opinion that: [ translation] [33] Are we in the sphere of political or operational decisions?

The trial judge will be better able to decide.

At the authorization stage, a prima facie case is sufficient. [ 44 ] With respect, I consider that the trial judge should have analyzed from the outset the sufficiency of the allegations on the issues of liability for neighbourhood disturbances and fault-based liability in order to properly assess the legal syllogism of the proposed class action before accepting the immunity argument as a determinative one. [ 45 ] Except in the case of clear and express statutory immunity, and considering that in general, an analysis of the value of a line of defence based on State immunity is more a question of mixed law and fact than it is a question of law alone, it was appropriate under the circumstances of the present case, and in light of the allegations in the motion, to leave it up to the trial judge to decide this issue. (ii) Neighbourhood disturbances [ 46 ] The appellants seek the respondent's liability for neighbourhood disturbances caused by the excessive noise resulting from the vehicular traffic on the Laurentian Autoroute.

They invoke the strict liability scheme, which brings us back to the application of

article 976 C.C.Q. [27] [ 47 ] The trial judge seems to take it for granted that, in the context of this case, the respondent is a neighbour. [28] It has in fact been conceded that the Minister manages the portion of the highway concerned by the motion for authorization. Under

section 6 of the Act respecting Roads , [29] the Minister, in his capacity as manager, exercises all the rights of an owner. He “shall have all the necessary powers for such purposes and shall assume all the related obligations .” [Emphasis added.] The evidence in the record was sufficient at the authorization stage to agree prima facie that the respondent was “a neighbour” within the meaning of

article 976 C.C.Q. [ 48 ] In their motion, the appellants list the annoyances resulting from the nuisances giving rise to the neighbourhood disturbances that they consider abnormal and excessive. I think it useful to quote them in full: [ translation] (

a) the petitioners can no longer use their land to practise normal summertime activities, which are usually the norm for any residential neighbourhood;

(

b) the petitioners have had to give up a number of summertime activities such as swimming, eating outdoors, entertaining guests, and other similar activities because of the constant barrage of noise from Highway 73; (

c) they cannot have a conversation outside their homes without having to raise their voices significantly (they need to shout to talk to one another); (

d) they need to keep the windows in their homes closed at all times so as not to be bothered by the noise from Highway 73; (

e) their sleep has been disturbed for a number of years; (

f) whether inside or outside their homes, the petitioners are subjected to a loud background noise, comparable to a constant, intense drone; (

g) the noise pollution to which they are exposed is making them impatient and/or aggressive; [30] [ 49 ] They add that the respondent himself established the benchmarks for what he considers to be reasonable noise levels by adopting ministerial policies with respect to this nuisance. Without claiming that these policies are capable of compelling the State to act, the appellants opine that they have an undeniable interpretative value because they provide an objective explanation of abnormal and excessive annoyances.

Lastly, the appellants submit that the Desseau Soprin report supports their claim that some homes in the concerned area are exposed to abnormal noise levels. [ 50 ] In matters involving neighbourhood disturbances, the evidence must essentially address the consequences of exercising the right of ownership. Persons who, without ever having committed a fault, cause abnormal annoyances to their neighbours by using property over which they have an ownership-like right, will incur civil liability with regard to these neighbours. The onus of proving these abnormal annoyances pursuant to

article 976 C.C.Q. , however, is heavy. Often, one or several expert reports will be required to show the extent of the nuisance, and such evidence will need to be sufficiently eloquent to convince the trial judge of its merits. [ 51 ] Although the appellants' burden is heavy, presenting a substantial degree of difficulty, [31] the definitive value of the class action at the authorization stage cannot be presumed here. [ 52 ] Government policies on noise and the Desseau Soprin report are prima facie evidence of the abnormal nature of the annoyances suffered. Even if the parties do not agree on the scope and

interpretation of this information, it will be up to the trial judge to draw the requisite conclusions in light of evidence that at that stage should reach the threshold of the balance of probabilities.

As for the consequences that the alleged nuisances have on the lives of the members in the group, the allegations in the motion meet the evidentiary burden applicable at the authorization stage. [ 53 ] In short, I am of the view that the issue of the State's liability for neighbourhood disturbances raises a sufficient prima facie case to authorize the proposed class action. (iii) Fault-based liability [ 54 ] The appellants argue that the Ministry of Transport had studies in hand that confirmed, in their opinion, that the acceptable noise level had been exceeded for the area in which they live.

Because of this knowledge and his capacity as manager of the place, the Minister allegedly omitted to take the requisite noise reduction measures in this case. His failure to act would apparently account for his liability under

article 1457 C.C.Q. [ 55 ] There is no doubt that according to the allegations of the motion for authorization, the Ministry of Transport was aware of the problems raised by the appellants. Under the circumstances, did the respondent act reasonably? [ 56 ] Annoyances that cannot otherwise be strictly qualified as abnormal may nevertheless result from wrongful conduct.

In order to establish the respondent's liability, it is sufficient to determine that there was negligence with regard to his conduct, that such negligence was the cause of the damages suffered by the appellants and that there is a causal link between the two. With respect for the position held by the respondent, I am of the opinion that the allegations in the motion sufficiently demonstrate the components of fault in accordance with

article 1457 C.C.Q. But there is more. [ 57 ] The appellants also claim that the respondent contravened various legislative standards, thereby invoking sections 19.1. and 20 of the Environment Quality Act , which state: 19.1 Every person has a right to a healthy environment and to its protection, and to the protection of the living species inhabiting it, to the extent provided for by this Act and the regulations, orders, approvals and authorizations issued under any

section of this Act and, as regards odours resulting from agricultural activities, to the extent prescribed by any standard originating from the exercise of the powers provided for in subparagraph 4 of the second paragraph of

section 113 of the Act respecting land use planning and development (chapter A-19.1). 20. No one may emit, deposit, issue or discharge or allow the emission, deposit, issuance or discharge into the environment of a contaminant in a greater quantity or concentration than that provided for by regulation of the Government.

The same prohibition applies to the emission, deposit, issuance or discharge of any contaminant the presence of which in the environment is prohibited by regulation of the Government or is likely to affect the life, health, safety, welfare or comfort of human beings, or to cause damage to or otherwise impair the quality of the soil, vegetation, wildlife or property. [32] [ 58 ] They also have not failed to add sections 6 and 46.1 of the Charter of human rights and freedoms to their claims: 6.

Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law.

46.1 Every person has a right to live in a healthful environment in which biodiversity is preserved, to the extent and according to the standards provided by law. [33] [ 59 ] The arguments drawn from the wording of the Environment Quality Act and the Charter of human rights and freedoms add weight to the appellants' claims regarding the prima facie case required at the authorization stage. [ 60 ] The allegations set out in the motion in fact show that the appellants' comfort and their environment are affected by the annoyances that are likely to give rise to the application of these statutes. (iv) Injunction [ 61 ] The respondent maintains that in matters involving injunction, he must benefit from the immunity conferred on him by articles 94.2 and 100 C.C.P.

Alternatively, he states that the conclusions for an injunction contained in the motion to institute proceedings are vague, unfeasible and, consequently, unlawful. These two grounds are without merit. [ 62 ] The appellants were careful to incorporate in their proceeding two conclusions of declaratory relief, which seem determinative with respect to the injunction orders sought. They are drafted as follows: DEclare that the respondent is contravening sections 19.1 and 20 of the Environment Quality Act .

DEclare that the respondent is contravening sections 6 , 46.1 , and 49 of the Charter of human rights and freedoms . [ 63 ] Authors Paul-Arthur Gendreau et al. describe the limits of the immunity claimed by the respondent with respect to injunctions: [ translation] The Supreme Court considers that when government representatives act contrary to the law, they cease to be agents or mandataries; consequently, the agent or mandatary of the State, because he or she broke the law, loses his status and the unlawful acts are no longer protected. … As discussed earlier, this immunity also does not apply when the purpose of the injunction is to prevent the application of an unconstitutional law or to remedy a situation in violation of a right guaranteed by the Canadian Charter of Rights and Freedoms or the Quebec Charter of human rights and freedoms .

In

summary, if the Crown, in fact and in principle, enjoys immunity from being the target of an injunction, an order will nonetheless be allowed to counter the action or inaction of a minister, bureaucrat, or any government agent or mandatary if the act or omission is an excess or abuse of their powers, even discretionary ones, or is in breach of the law . [34] [Emphasis added.] [ 64 ] In support of their position, the appellants also claim that their rights guaranteed under the Charter of human rights and freedoms were violated.

Section 49 to which they refer states: 49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom . In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages . [35] [ 65 ] Proving before a trial judge that a Charter right was violated will be determinative in establishing whether or not the respondent will benefit from the statutory immunity invoked.

Arguing for the application of this privilege at the authorization stage, however, within the context of the present case, seems premature. The issue of whether the respondent violated a Charter right depends first and foremost on the proof of such violation, which falls essentially within the purview of the trial judge. [ 66 ] It must be said that

section 19.3 of the Environment Quality Act confers on any citizen frequenting a place, in respect of which there has been interference with the quality of the environment, sufficient legal interest to obtain an injunction to obtain the cessation of such unlawful interference . [36] Also, when faced with a clear violation of a public interest law, there is an almost irrebuttable presumption of serious and irreparable harm. [37] [ 67 ] In

summary, an action based on the violation of a Charter right or of a public interest law such as the Environment Quality Act , as this case is, makes it possible for conclusions in the nature of an injunction to be asserted against the Attorney General. [ 68 ] As to the vague and subjective nature of these orders, I acknowledge that the conclusions of the motion hardly appear enforceable at the present moment. It would, however, be premature at the authorization stage to decree that due to the vagueness of the corrective measures sought, they are actually unlawful.

A prima facie case does not require that the appellants provide exhaustive proof of their claims at the authorization stage. [ 69 ] Evidence on the merits will make it possible to measure the scope of the orders sought and to assess whether they entail disproportionate economic consequences. If, at trial, the appellants are unable to satisfactorily specify the remedy sought and demonstrate its applicability, these conclusions may then be subject to one of the measures provided in

article 1022 C.C.P. , [38] unless the group representative, with the court’s leave, has already used one of the grounds provided in

article 1016 C.C.P. [39]

[ 70 ] In closing on this point, it is my opinion that an injunction, when it occurs within the context of a class action in order to obtain the cessation of neighbourhood disturbances, is a matter of choice. Otis J.A., in Citoyens pour une qualité de vie , eloquently expressed the same opinion: [ translation] [53] More specifically, in a class action context, the courts have often permitted recourse to an injunction at the authorization stage to counter neighbourhood disturbances.

If there is an avenue of relief that effectively redresses major infringements on the principle of good neighbourliness, it is definitely an injunction. Exercised through a class action, the proceedings will be more effective, more focused, and will meet the general objective of access to justice. In addition, by avoiding multiple proceedings, a class injunction will conserve judicial resources and promote the stability of law (art. 4.2 C.C.P. ). [40] 2) Identical, similar or related questions of law or fact (article 1003 (

a) C.C.P. ) [ 71 ] The respondent argues that the proposed class action does not raise any questions that could be considered as being common to all the group members. [ 72 ] It seems to me that the trial judge’s answer to this argument applies to this particular case: [ translation] [29] …, subject to the possibility for the court to restrict the group with regard to the evidence or to divide it into subgroups, the questions of fact and of law will clearly be the same for all the members on whose behalf the petitioners intend to act.

Essentially, in fact, it will be a matter of first assessing the level of noise from Highway 73, about which study R-12 already provides rather detailed information, and then of determining if this constitutes an abnormal annoyance that exceeds the limits of tolerance between neighbours, according to the nature or location of their land or local custom (976 C.C.Q. ).

And from that point, a decision will have to be made regarding whether the Ministry should be required to reduce the noise level to below a given ceiling and to indemnify those who were exposed to an excessive level of nuisance during the period covered by the application. [41] [ 73 ] I do not see any error in principle in the preceding statement that would justify the Court's intervention. Group members may have experienced nuisance levels at varying degrees. Care must be taken, however, not to put the authorization of a class action suit and its final enforcement on the same footing.

It will be up to the trial judge to distinguish between the individual questions arising from the class action. [42] In this regard, the trial judge has sufficient discretion to modify the group while it is before the court so as to take into account certain characteristics revealed by the evidence and thus be in a better position to handle the diversity of the individual claims before the court.

The definitive description of the group will also be one of the considerations of the final judgment, not to mention that the law provides special terms and conditions for analyzing individual claims when the judgment acquires the authority of res judicata (articles 1037 et seq C.C.P. ). [ 74 ] In

summary, I am of the opinion that the motion for authorization raises questions that are essentially common to the group members. In any case, if specificities related to certain members emerged to a significant degree following an analysis of the evidence, this difficulty could be easily resolved according to the foregoing. 3) Composition of the group (article 1003(

c) C.C.P. ) [ 75 ] The respondent criticizes the proposed class action for circumventing the requirements of articles 59 and 67 C.C.P. In fact, the procedural vehicle selected by the appellants would not be appropriate insofar as the Desseau Soprin study shows that only 46 homes out of the 497 concerned by the class action would be affected by noise levels greater than or equal to 65 dBA (Leq 24 h). [ 76 ] First of all, the evidence shows that a level of 65 dBA (Leq 24

h) is not the threshold that the appellants consider to be tolerable. They stand by a much more rigorous standard, namely that of 55 dBA (Leq 24 h). If this standard were to be the one that the trial judge accepted as the abnormal annoyance level, the group would grow considerably, and the initial assessment of 46 homes affected by abnormal noise pollution would no longer stand. [ 77 ] Furthermore, the examination of the author of the Desseau Soprin report shows that if a more elaborate methodology were used, even while accepting only the 65 dBA (Leq 24

h) standard, the statistic of 46 homes would be likely to increase. [ 78 ] Under the circumstances and in case of doubt on the size of the group, I find that this doubt should benefit the appellants. CONCLUSION [ 79 ] I find that the class action should have been authorized in accordance with the conclusions in the amended motion to institute proceedings.

It raises major environmental issues and the allegations in the motion sufficiently support the right that the appellants wish to see sanctioned on its merits. [ 80 ] Protecting the environment is a responsibility entrusted to all citizens, while public authority is called upon to play an ever increasing role in this area. Noise pollution is included in this responsibility. A class action facilitates the implementation of the statutory

protections against various environmental nuisances. By the same token, because there is strength in numbers, it strikes a fair balance between those persons grappling with the consequences of the alleged violation and an offender who often has deeper pockets. Consequently, behaviours in this matter that are considered reckless, unreasonable, or unlawful are more easily sanctioned civilly. [ 81 ] For these reasons, I would allow the appeal and authorize the appellants to bring a class action in accordance with the conclusions in the amended motion to institute proceedings. GUY GAGNON, J.A.