2018 QCCA 1440, 2018 QCCA 1440

Translated from the original French Amzallag c. Ville de Sainte-Agathe-des-Monts 2018 QCCA 1440 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-025797-150 (700-17-009263-129) DATE: September 17, 2018 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. MANON SAVARD, J.A. JOCELYN F. RANCOURT, J.A. YAMNA AMZALLAG APPELLANT – defendant/cross-plaintiff v.

VILLE DE SAINTE-AGATHE-DES-MONTS RESPONDENT – plaintiff /cross-defendant JUDGMENT [ 1 ] The appellant appeals from a judgment of the Superior Court, District of Terrebonne (the Honourable Pierre Journet, J.S.C.), which, on November 10, 2015, granted the respondent’s motion to institute proceedings based on the Act respecting land use planning and development . [1] [ 2 ] For the reasons of Savard, J.A., with which Doyon and Rancourt, JJ.A. agree, THE COURT : [ 3 ] ALLOWS the appeal for the sole purpose of correcting the trial judge’s omission to rule, in the disposition of the judgment, on the appellant’s cross-demand; [ 4 ] ADDS the following paragraph to the disposition of the trial judgment: [100]

b) DISMISSES the defendant’s cross-demand; [ 5 ] SPECIFIES that the time periods indicated in the disposition of the trial judgment are to be calculated from the date of this judgment. [ 6 ] With legal costs in favour of the respondent, given the outcome of the appeal. FRANÇOIS DOYON, J.A. MANON SAVARD, J.A. JOCELYN F. RANCOURT, J.A. Yamna Amzallag Representing herself Mtre Sébastien Dorion Dunton Rainville For the respondent

Hearing date: April 17, 2018 REASONS OF SAVARD, J.A. [ 7 ] On November 10, 2015, the Superior Court, District of Terrebonne (the Honourable Pierre Journet, J.S.C.), granted the amended motion of the respondent, Ville de Sainte-Agathe-des-Monts (the Town), based on sections 227 and 231 of the Act respecting land use planning and development [2] and ordered, inter alia , the appellant to perform various work on the building that she owns. [3] Failing the appellant’s compliance with the various orders within the prescribed time periods, it authorized the Town to proceed with the demolition of the building, without further notice and at the appellant’s expense.

At the same time, it dismissed the cross-demand of the appellant, who sought more than $160,000 in compensatory and punitive damages, given the Town’s alleged abusive conduct, including its failure to maintain Panorama Road allowing her to access her property. [4] [ 8 ] The appellant, who is not represented by counsel, appeals from this judgment. Essentially, she reiterates before the Court the arguments raised at trial.

She disputes the scope of the Town’s inspection powers under By-law 2009-U51 concerning the application and administration of urban planning by-laws (By-law 2009-U51), as well as the lawfulness of the inspection conducted in September 2015 inside her building, after she had refused to grant the inspector access, and the admissibility of the resulting evidence.

She also criticizes the trial judge for having dismissed her cross-demand. [ 9 ] This appeal was heard at the same time as that brought by the parents of the appellant against a judgment of the Superior Court rendered on March 21, 2016, (500-09-026030-163) which raises the same issues as to the inspection powers of the Town and which is the subject of a concurrent judgment [5] (companion case). [ 10 ] Like in that companion case, I am of the opinion that By-law 2009-U51 did not authorize the Town to proceed with the inspection conducted in September 2015.

However, the reports prepared by the Town’s representatives following this inspection were admissible as evidence pursuant to

article 2858 C.C.Q. Lastly, there is no reason to reverse the judge’s finding that the appellant’s action against the Town was prescribed. I- Background [ 11 ] Since 1999, the appellant has owned one of the buildings making up what is known as Domaine Panorama, located in the territory of the Town. Her parents own the other buildings there. Relations between these owners and the Town are tense and have given rise to many legal disputes.

The one at issue here can be summarized as follows. [ 12 ] On August 24, 2012, the Town filed a [ translation ] “motion to institute proceedings for demolition,” pursuant to sections 227 and 231 of the Act respecting land use planning and development . It argued that the appellant’s building [ translation ] “constitutes a danger for anyone wishing to live in it” and sought an order for its demolition.

In the event it were deemed that demolition was not absolutely necessary, it sought in the alternative various orders to perform repair work and, if the appellant failed to perform the work within the required time period, an order for the building’s demolition. The Town eventually withdrew its principal conclusion seeking demolition of the building and kept only the alternative conclusion. [ 13 ] This proceeding followed different inspections of the property since 2009 and various resolutions of the Town.

It relied more specifically on the report of May 24, 2012 prepared by the Town’s building inspector following an inspection of the exterior of the property. Another inspection followed on August 15, 2012, when building inspectors and inspectors from the Town’s fire department were accompanied by a building engineer, Marc-André Ducharme, who recorded his findings in a report dated August 23, 2012. Once again, it was an inspection of the exterior of the building only, since they could not gain entry given the owner’s absence.

Her father, although present, said that he did not have the key to the building. [ 14 ] In December 2012, the appellant filed a defence and a cross-demand. She considered the Town’s proceeding to be abusive, but admitted that [ translation ] “the building does not appear maintained and shows apparent signs of neglect” and that it seems unoccupied. She denied, however, that demolition was the only effective remedy, stating that [ translation ] “normal minor maintenance work” would be sufficient.

Relying essentially on the Town’s failure to maintain Panorama Road despite an agreement entered into between the Town and her parents in 2009, she claimed more than $160,000 in compensatory and punitive damages, alleging loss of value of her property, loss of rental income, trouble and inconvenience, abuse of procedure and bad faith on the part of the Town. [ 15 ] In preparation for the proof and hearing scheduled for October 19, 2015, the Town notified the appellant of its intention to inspect her immovable again, including the interior, on September 17, 2015.

It informed her at the time of her obligation to give it access to the interior of the building, as stipulated in

section 3.1.3 of By-law 2009-U51. The appellant said she was surprised by this request, which she also considered abusive, and diligently informed the Town that she would refuse the inspectors entry to her immovable. For the sake of convenience, I have reproduced in the appendix this regulatory provision at the heart of the dispute. [ 16 ] The building inspectors and the inspectors from the Town’s fire department, accompanied again by building engineer Ducharme, nevertheless went to inspect the buildings on September 17, 2015. As announced, the appellant was not present.

A locksmith, on the premises at the Town’s request, was unable to “pick” the locks of the building. After consulting with the Town’s lawyers and in the presence of police officers who arrived on the premises, the inspectors gained entry to the building via an unlocked window. [ 17 ] Two additional reports were prepared following this inspection, one by the Town’s urban planning and environment department, and the second by engineer Ducharme, respectively dated September 17 and October 5, 2015.

[18] After a three-day trial during which each party, inter alia, called an expert to testify on the condition of the property, the trialjudge noted [translation] “the general state of neglect of the property” and granted the Town’s amended motion. He ordered the appellantto submit a renovation plan to the urban planning department and obtain the permits authorizing her to have a licensed contractorperform the necessary work.

In the event the renovation work was not performed within 60 days of the issuance of the permits or if apermit application was not made within 60 days of the judgment, the judge authorized the Town to demolish the building at the owner’sexpense. [19] The judge also dismissed the appellant’s cross-demand. He found that [translation] “[Panorama] Road was not in impeccablecondition but usable.” As for the damages resulting from the closing of the road in 2012, he found that the situation had been corrected inMarch 2012, such that her action was prescribed, having been instituted after the six-month period set out in

section 586 of the Cities andTowns Act.[6] But irrespective of this issue, he dismissed all evidence of damages. Lastly, he found that there was no evidence to supporta finding of deceitful or malicious conduct on the part of the Town’s representatives.

II- Issues [20] The appellant raises different issues that revolve around four points: 1- the lawfulness of the inspection conducted on September17, 2015, and the admissibility of the resulting evidence; 2- the validity of the Town’s resolutions preceding the inspection report of May24, 2012; 3- the Town’s withdrawal, at the beginning of the trial, of its principal conclusion for demolition; and 4- the dismissal of hercross-demand. [21] Only the first complaint merits analysis. [22] I summarily dismiss the other arguments raised by the appellant, which are essentially based on the assessment of the evidenceby the trial judge.

She simply asks the Court to read the evidence differently without, however, identifying a “palpable and overridingerror”. The passage below, written by my colleague Morissette, J.A., in P.L. v. Benchetrit,[7] is, once again here, very relevant: [translation] [24] … “To study the record” does not mean to retry the case. In the area of fact, the respective roles of a trial court and an appellatecourt are largely dictated by institutional considerations.

A trial judge, as everyone knows, has the advantage of examining thedocumentary or physical evidence, seeing and hearing the witnesses, and being present for the linear unfolding of the evidence at the rateat which it is adduced by the parties. An appellate judge has the advantage of being seized of a case long before the hearing, which case,in theory, already contains all of the evidence, or at least everything relevant to the appeal.

The appellate judge can thereforeimmediately ask the attorneys for clarifications regarding the content of the record and, since the appellate judge is working with thetranscript of the testimony (which is rarely the case at trial), he or she can cross check to highlight the contradictory or divergentinformation, found in nearly all litigious matters.

But the appellate judge does not see or hear the witnesses and, above all, the timeconstraints imposed by the appellate judge’s duties do not allow him or her to redo what is expected of a trial judge, that is, to perform adetailed examination of the evidence at the pace at which it was presented by the parties at trial. Except for those cases where there is noroom for doubt, the appellate judge is in a poor position to reassess the credibility of the witnesses. He or she also has to count on theassistance of counsel to identify and assess the alleged errors of fact relied on by a party.

It follows from this that no purpose is served onappeal by affirming, without being more specific, that a finding of fact [translation] “is contrary to the whole of the evidence”. Andclaiming that something is “palpable” does not make it so. In my view, this is how we must understand what Fish J. was saying when he wrote the following in H.L. v. Canada (Attorney General):9 The “palpable and overriding error” standard, apart from its resonance, … helps to emphasize that one must be able to “put one’s fingeron” the crucial flaw, fallacy or mistake.

In the words of Vancise J.A., “[t]he appellate court must be certain that the trial judge erred andmust be able to identify with certainty the critical error” (Tanel, at p. 223, dissenting, though not on this issue). To “put one’s finger on” means something other than inviting the Court to take a broad look at all the evidence: it means to direct itsattention toward a determined point where an unequivocal evidentiary element is quite simply an obstacle to the impugned finding offact.

If that finding of fact, which has, in that way, been shown to be clearly wrong, sufficiently compromises the disposition of thejudgment, then the error will be regarded as determinative and will justify reversing the judgment. ________________________ 9. H.L. v. Canada (Attorney General), 2005 SCC 25 , [2005] 1 S.C.R. 401 at para. 70; the citation refers to Tanel v. RoseBeverages

(1964) Ltd. (1987), (SK CA), 57 Sask. R. 214 (C.A.). [Emphasis added.] [23] In this case, the appellant failed to “put [her] finger on” this [translation] “unequivocal evidentiary element” that is an obstacleto the judge’s findings of fact as to the absence of bad faith on the part of the Town’s representatives when adopting the resolutionspreceding the judicial application and to the beginning of the prescription period applicable to the aspect of the cross-demand based onthe failure to maintain Panorama Road. Since this is the only complaint made by the appellant in the

section of her factum concerningher objection to the dismissal of the cross-demand, I need not examine the other findings of the judge in this regard. [24] As for the withdrawal at the beginning of the hearing of the Town’s principal request – demolition of the building – in additionto not objecting to this request when it was made at the beginning of the hearing, the appellant failed to indicate how the judge erred inallowing this amendment which, I would point out, was to her benefit. [25] I shall therefore consider only the appellant’s first complaint, which concerns the lawfulness of the inspection conducted onSeptember 17, 2015, and the admissibility of the resulting evidence.

III- Analysis [ 26 ] At the beginning of the trial, as in her argument, the appellant objected to any testimony concerning the findings made during the inspection of September 17, 2015, and to the admissibility of the reports that followed. Since the inspection was in her view unlawful, any evidence relating thereto should have been excluded. The judge did not definitively rule on this issue during the trial and omitted to discuss it in his judgment. Because he based his reasoning on this impugned evidence, I understand that he dismissed the appellant’s objection.

He should have given reasons for his decision on this issue, at least succinctly (art. 321 C.C.P. ). a. The lawfulness of the inspection [ 27 ] The appellant’s claims as to the unlawfulness of the inspection of September 17, 2015, are based on

section 3.1.3(3) of By-law 2009-U51, reproduced in the appendix. They are to the same effect as those made by her parents in the companion case. The same holds for the Town. I will avoid any repetition by referring the reader to paragraphs 20 to 34 of my analysis in that case – Amzallag c. Ste-Agathe-des Monts (Ville de) , 2018 QCCA 1439 . [ 28 ] I will now examine the facts of this case. On September 17, 2015, the Town knew that the appellant had refused it entry to her building to conduct its inspection. It was unaware at the time of the use of the immovable.

According to the file, the last inspection dated back to August 2012. At the time, the information in its possession enabled it to affirm that the building was used as a dwelling house, as appears from a resolution of the Town in March 2012 and from the formal notice sent to the appellant on May 1, 2012, when the Town wrote that [ translation ] “the immovable is apparently currently occupied by a family that is renting it”. A few weeks later, the building inspector said that the immovable might be used for religious purposes.

In August 2012, the Town based its judicial application on the fact that the immovable constituted [ translation ] “a danger for anyone wishing to live in it”. It is true that, in her defence, the appellant said that she had no longer been living there since 2004, but she mentioned at the same time that members of her family and guests had access to it, as she did.

The Town did not show that in visiting the premises on September 17, 2015, it reasonably believed that the building was used for a purpose other than as a dwelling house, whether by the appellant, the members of her family, or even third-party renters. [ 29 ] In such a context, and for the same reasons as those stated in the companion case, the Town could not rely on

section 3.1.3(3) of By-law 2009-U51 to gain entry to the building of the appellant, who refused it access thereto, which building it should have reasonably believed to be a dwelling house, by trying to force the locks or by entering via the window. In my view, this inspection, as conducted, is contrary to

section 24.1 of the Charter of Human Rights and Freedoms [8] and to

section 8 of the Canadian Charter of Rights and Freedoms . [9] [ 30 ] I would add that the appellant does not argue, in her factum, that such a conclusion on the part of the Court should give rise to a review of the dismissal of her claim for damages due to the abusive conduct of the Town. But be that as it may, because of the particular context of the case, I do not believe that such a claim would have been allowed in any case. b.

Article 2858 C.C.Q. [ 31 ] As above, I refer the reader to paragraphs 42 to 45 of my analysis in the companion case – Amzallag c. Ste-Agathe-des Monts (Ville de) , 2018 QCCA 1439 – where I examine the balancing exercise that the trial judge should have engaged in to determine the admissibility of the evidence obtained during the inspection of September 17, 2015, in accordance with

article 2858 C.C.Q. [ 32 ] The same analytical framework applies here. Many of the elements considered in that case are also present here. The context, although different in some respects, remains the same. [ 33 ] As in the companion case, the issue of the dangerousness of the appellant’s building has been in dispute between the parties for many years. The lawfulness of the inspections conducted prior to the September 2015 inspection is not at issue. Those inspections were part of the legitimate exercise of the Town’s powers to ensure compliance with public safety municipal by-laws.

The inspection in dispute is part of an ongoing legal debate where in similar cases, a municipality commonly obtains an update of the situation since the filing of proceedings. We should not lose sight of the fact that

section 227 of the Act respecting land use planning and development confers discretion on the court, which undeniably could want to be informed of the situation prevailing at the time of the trial. The appellant’s refusal to allow the inspection requested by the Town seems rather to be part of a longstanding dispute between the parties, as it is hard to explain in light of the facts of this case alone.

However, the Town, a public body, gained entry to the building unlawfully, which must be given serious consideration. [ 34 ] The inspection of September 17, 2015, nevertheless revealed that at that date, the building was not used as a dwelling house. The judge noted the general state of neglect of the property. In fact, the photographs of the premises taken during that visit speak for themselves. The judge was surprised that the Town withdrew its principal request for demolition. The appellant reiterated at the hearing that she had no longer been living there since 2004.

The infringement of her privacy is therefore less serious. [ 35 ] Lastly, the evidence resulting from the impugned inspection was at the heart of the case before the judge and was, moreover, an extension of the 2012 inspection. Although the appellant was right to claim that the Town should have gone about things differently to obtain an update of the situation, and well before a few weeks preceding the trial, the appellant was able to respond to this evidence by, inter alia , calling an expert to testify on the condition of the premises and the changes made to the building, even during the trial.

The judge did not accept this evidence, but the appellant cannot maintain that she was not heard. [ 36 ] In my opinion, therefore, a fair weighing of the factors relevant to the analysis under

article 2858 C.C.Q. – the seriousness of the infringement and the stakes of the trial – in light of the facts of the case, authorizes the use of the evidence resulting from the inspection of September 17, 2015, which is not likely to bring the administration of justice into disrepute. This is a case where, as I wrote in the companion case, “the truth-seeking function of the ... trial process ...” [10] is better served by using the evidence rather than

excluding it. IV-Conclusion [ 37 ] In

summary, I would dismiss the appellant’s grounds of appeal, with legal costs in favour of the Town. [ 38 ] Moreover, as I wrote in the note at the bottom of page 3, supra , I would correct the disposition of the trial judgment in order to specify the dismissal of the cross-demand, with costs according to the general rule set out in

article 477 C.C.P. In addition, to avoid any dispute between the parties, I also believe it appropriate to specify that the time periods provided in the disposition of the trial judgment be calculated from the date of this judgment. MANON SAVARD, J.A.