2012 QCCA 357, 2012 QCCA 357

Unofficial English Translation Québec (Procureur général) c. Gestion environnementale Nord-Sud inc. 2012 QCCA 357 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-020961-108 500-09-020966-107 (500-17-054838-092) (500-17-057490-107) DATE: FEBRUARY 22, 2012 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. ALLAN R. HILTON, J.A. GUY GAGNON, J.A. No.: 500-09-020961-108 ATTORNEY GENERAL OF QUEBEC, MINISTER OF SUSTAINABLE DEVELOPMENT, ENVIRONMENT AND PARKS APPELLANTS – Impleaded parties v. GESTION ENVIRONNEMENTALE NORD-SUD INC., RCI ENVIRONNEMENT INC.

RESPONDENTS – Petitioners and RÉGIE INTERMUNICIPALE D'ARGENTEUIL DEUX-MONTAGNES RESPONDENT – Respondent and CITY OF LONGUEUIL ARGENTEUIL REGIONAL COUNTY MUNICIPALITY IMPLEADED PARTIES – Impleaded parties and WM QUÉBEC INC. MIS EN CAUSE – Intervener No.: 500-09-020966-107 BERNARD MORE, DOMINIQUE ROY, SYLVAIN LOUIS SEIZE, WM QUÉBEC INC. APPELLANTS – Plaintiffs v.

RCI ENVIRONNEMENT INC., GESTION ENVIRONNEMENTALE NORD-SUD INC., RÉGIE INTERMUNICIPALE D'ARGENTEUIL DEUX-MONTAGNES, CITY OF LONGUEUIL RESPONDENTS – Defendants and MINISTER OF SUSTAINABLE DEVELOPMENT, ENVIRONMENT AND PARKS, ATTORNEY GENERAL OF QUEBEC, ARGENTEUIL REGIONAL COUNTY MUNICIPALITY IMPLEADED PARTIES – Impleaded parties JUDGM ENT

[ 1 ] The appellants appeal from judgments rendered on July 22, 2010, by the Superior Court, District of Montreal (the Honourable Mr.

Justice Brian Riordan), which dismissed an injunction on the merits in the file bearing docket number 500-17-057490-107 and granted the motion for declaratory judgment in the file bearing docket number 500-17-054838-092. [ 2 ] For the reasons of Gagnon J.A., with which Pelletier and Hilton JJ.A. agree. [ 3 ] THE COURT: [ 4 ] aLLOWS the appeals with costs against the respondents; [ 5 ] SETS ASIDE the judgments of July 22, 2010; [ 6 ] And, rendering the judgments that should have been rendered: Sup.

Ct. file: 500-17-054838-092 Grants the motion for declaratory judgment, with costs against the petitioners based on a motion dismissed on the merits ; RejeCTS the declaratory conclusion sought by the petitioners; DEclareS that the operator of the Lachute landfill site may not receive or accept for disposal purposes residual materials from outside the service territory identified in the Impact Study (Table 2.9); Sup.

Ct. file: 500-17-057490-107 GRANTS the injunction sought by the petitioners, with costs; OrdERS Gestion environnementale Nord-Sud inc., the Régie intermunicipale Argenteuil Deux-Montagnes, as well as any other operator of the Argenteuil Deux-Montagnes sanitary landfill site, not to receive or dispose of residual materials at the technical landfill site of the Régie intermunicipale Argenteuil Deux-Montagnes in Lachute except for the residual materials from the service territory identified in the Impact Study of Phase II of the sanitary landfill site in question (Table 2.9), and only up to a maximum of 500,000 metric tonnes or 667,000 cubic metres per year, the attainment of the first of these levels causing the application of the second to lapse .

FRANÇOIS PELLETIER, J.A. ALLAN R. HILTON, J.A. GUY GAGNON, J.A. Mtre Marc Dion Direction générale des affaires juridiques ET législatives For the Attorney General of Quebec and the Minister of Sustainable Development, Environment and Parks Mtre Robert Cardinal CARDINAL AVOCAT and Mtre Michel Yergeau and Mtre Mathieu Quenneville (legal counsel) LAVERY, DE BILLY For Gestion environnementale Nord-Sud inc. and RCI Environnement inc.

Mtre Louis Béland DUFRESNE, HÉBERT, COMEAU For the Régie intermunicipale d'Argenteuil Deux-Montagnes Mtre Pierre-Hugues Miller MORENCY SOCIÉTÉ D'AVOCATS For the City of Longueuil Mtre Daniel Goupil (absent) PRÉVOST, FORTIN, D'AOUST For the Argenteuil Regional County Municipality Mtre Christine Dubreuil-Duchaine SODAVEX and Mtre Robert Daigneault (legal counsel) DAIGNEAULT, AVOCATS

For Bernard More, Dominique Roy, Sylvain Louis Seize and VM Québec inc. Hearing date: June 1, 2011 REASONS OF GAGNON, J.A. [ 7 ] In a judgment rendered on July 22, 2010, [1] a judge of the Superior Court (the Honourable Mr. Justice Brian Riordan) decided that the operator of the Argenteuil Deux-Montagnes sanitary landfill site (Lachute) could accept residual materials there regardless of their origin and that Order in Council 918-2003 [2] [OIC] governing the activity of this site did not set any weight limit on the residual materials accepted there for landfilling.

Dissatisfied with these conclusions, the Attorney General of Quebec [AGQ], WM Québec inc. [WMQ] and three residents of the agglomeration of Longueuil appeal. [ 8 ] The judicial process began when the respondents Gestion environnementale Nord-Sud inc. [GENS] and RCI Environnement inc. [RCI] asked the Superior Court to declare that there was no legal prohibition preventing the disposal of residual materials from outside the territory of the Argenteuil Regional County Municipality [Argenteuil RCM] at the Lachute landfill site. [ 9 ] In a related file, [3] WMQ and residents of the agglomeration of the city of Longueuil, joined by the AGQ, replied by asking the Superior Court this time to order an injunction restricting both the source and the quantity of residual materials that this landfill site could accept. [ 10 ] The appellants’ argument is principally based on an environmental impact study [4] [Impact Study] that, according to them, forms an integral part of the OIC.

The study was carried out by the Régie intermunicipale Argenteuil Deux-Montagnes [Régie] in the context of a project to enlarge its landfill site located on the territory of the city of Lachute.

This document specifies, once the planned development is completed, the quantities and source of the residual materials that the site will be able to receive. [ 11 ] Resolving this appeal essentially entails determining the real scope of the OIC issued by the government of Quebec in September of 2003, which authorizes the enlargement of the Lachute landfill site and determines the terms for its operation. [ 12 ] The case can be summarized as follows: the Régie and GENS, according to their understanding of the OIC, believe they are authorized to dispose of a maximum volume of 667,000 cubic metres of residual materials annually, regardless of the weight of these residual materials.

Thanks to the compacting techniques used by the contractor, this volume can represent a weight of more than 750,000 metric tonnes of residual materials. I shall return to this point. [ 13 ] For their part, the AGQ and WMQ are of the opinion that the capacity of the Lachute site is limited to the only scenario considered by the Régie in its Impact Study, i.e. the landfilling of a maximum weight of 500,000 tonnes annually.

They maintain that this measure (metric tonnes), the only one mentioned in the study, is incorporated into the OIC by reference. [ 14 ] With respect to the service territory of the Lachute landfill site, the Régie and GENS claim that the OIC does not specify any such territory. The AGQ and WMQ argue, however, that the origin of the residual materials is specified in the Impact Study and that this condition is included in the OIC by formal reference to this document. The context [ 15 ] The history of this case dates back to 1993, when the Régie was considering enlarging its landfill site.

At the time, the project was governed by the Act respecting the establishment and enlargement of certain waste elimination sites , [5] which provided that any application to enlarge a landfill site was subject to an environmental impact assessment and review procedure. [ 16 ] To pursue its objective, the Régie also had to comply with the rigorous and complex process provided in sections 31.1 et seq. of the Environmental Quality Act [6] [ EQA ]. It is a mandatory procedure that must be followed by any applicant wishing to obtain the certificate of authorization identified in

section 31.5 of the EQA . [ 17 ] After having received the Régie’s notice of project, the Minister, in accordance with the Regulation respecting environmental impact assessment and review , [7] sent the Régie directives on November 13, 1996. These are in fact instructions [8] sent to the proponent of the project, informing it of the minimum requirements that the authors of the impact study must meet with respect to its nature, its extent and its scope. [ 18 ] It was not until November of 1999 that the Régie filed the study in question with the Minister.

It is unquestionably the cornerstone of the Régie’s entire undertaking. [ 19 ] According to its authors, the study seeks to determine the biophysical consequences on the environment of the project’s implementation and establish its possible impact on the surrounding communities. In light of these objectives, the study looks at different landfill scenarios based on population growth projections related to the operation of the site and the quantity of residual materials that these same people are likely to produce.

The quantities given in the Impact Study are measured annually and stated in terms of weight. [ 20 ] For a better understanding of my comments, I shall reproduce here Table 2.9 of the Impact Study: [9] [TRANSLATION]

TABLE 2.9 Landfill Scenarios for Phase II Total population

(1) Growth scenario for the communities served Administrative Region No.

RCM (Inhab.) Weak (Inhab.) Average (Inhab.) Strong (Inhab.) Very strong (Inhab.) Laurentians 72 Deux-Montagnes 80,237 80,237 80,237 80,237 80,237 73 Thérèse-de-Blainville 119,240 119,240 119,240 119,240 119,240 74 Mirabel 22,689 22,689 22,689 22,689 22,689 75 La Rivière-du-Nord 83,773 20,943 83,773 83,773 83,773 76 Argenteuil 28,505 28,505 28,505 28,505 28,505 77 Les Pays-d'En-Haut 28,237 7,139 28,237 28,237 28,237 78 Laurentians 36,400 18,200 36,400 36,400 36,400 79 Antoine-Labelle 33,904 0 16,952 25,428 33,904 Outaouais 80 Papineau 20,269 20,269 20,269 20,269 20,269 81 CUO 217,609 217,609 217,609 217,609 217,609 82 Les Collines-de- L'Outaouais 33,662 33,662 33,662 33,662 33,662 83 La Vallée-de-la- Gatineau 20,262 0 10,131 15,197 20,262 84 Pontiac 15,576 0 7,788 11,682 15,576 Lanaudière 62 Matawinie 41,320 0 0 10,330 20,660 64 Les Moulins 103,210 0 0 0 25,803 Laval 65 Laval 330,393 0 0 165,527 330,393 Montérégie 71 Vaudreuil-Soulanges 95,318 23,830 71,489 71,489 35,318 70 Beauharnois-Salaberry 59,769 0 0 14,942 29,885 Total pop. (Inhab.) 1,370,373 592,232 776,981 985,215 1,242,421 Annual quantity (tonnes) 300,000 400,000 500,000 600,000 (estimated rate of 0.5 t/h) Life cycle of Phase II according to the scenario (years) 31 23 19 15

(1) According to the Directory of municipalities, 1998 [ 21 ] Once this study was filed, in the context of the notice of admissibility of the project, the Minister requested certain clarifications on July 13, 2000, namely whether the Régie had consulted the community concerning the source and annual quantity of residual materials it wished to dispose of at the Lachute site. [10] The Minister wanted to know the extent of citizen support for the project. [ 22 ] In January of 2001, [11] the Régie answered the Minister that it had met with residents living on the outskirts of the landfill site and that they were told during this meeting how much residual material the site was likely to receive over the next few years.

The Régie added that it had also mentioned that the site could one day receive residual materials from [TRANSLATION] “adjacent” geographic areas, while specifying, however, that these areas were already served by another landfill site. [ 23 ] The Impact Study was made public on July 18, 2001. The Minister then asked the Bureau d'audiences publiques sur l’environnement [BAPE] to hold consultations on the project.

After eight meetings attended by more than 550 participants, 45 briefs later, the BAPE filed its report in March 2002 . [12] [ 24 ] Without formally having any power of recommendation, the BAPE occasionally submits conclusions to the Minister which often take this form. [13] Such is the case with the BAPE’s report here, which states: [TRANSLATION] The overuse of a site, which will be perpetuated in the proposed project design, deviates from sound management that seeks to establish on the territory of Quebec sustainable and fair management methods for the host population. [14] [ 25 ] Evidently, the project was received coldly by the BAPE, which felt that the leachate treatment system was insufficient for the quantity of residual materials received at the site.

According to the BAPE, if the existing system’s capacity remained the same, the environment could be unfavourably impacted in the event of an increase in the amount of residual materials received.

On this question, the Régie clearly did not foresee any changes in the way the site was operated and merely stated that putting in place water-tight landfill cells [TRANSLATION] “will considerably reduce the amount of leachate to be treated”. [15] [ 26 ] The BAPE also noted that the strategies employed by the Régie to encourage the population to recycle more had not produced the anticipated results, since the quantities of landfilled residual materials had continued to grow, from 102,000 tonnes in 1995 to 432,000 tonnes in 2001.

[ 27 ] Lastly, the BAPE asked the Régie to better define the regional disposal needs and suggested that it be more specific as to the intended use of the site, which it called a [TRANSLATION] “regional facility”. [16] [ 28 ] On October 24, 2001, the Argenteuil RCM pronounced itself in favour of the landfill scenario put forward by the Régie limiting the site’s annual capacity to 500,000 tonnes.

In addition, it defined its service territory according to Table 2.9 of the Impact Study . [17] [ 29 ] In order to enable the Minister to better evaluate the environmental acceptability of the project, the Environmental Assessment Department of the Ministry of Sustainable Development, Environment and Parks [MSDEP] prepared a report, which it submitted to the Minister on February 27, 2003. [18] [ 30 ] The authors of this study felt that the maximum annual landfill capacity of 500,000 tonnes proposed by the Régie seemed justified.

They estimated the total capacity of the site (lifetime) at 9.3 million tonnes which, according to them, was equivalent to a volume of 12.4 million m 3 of residual materials.

They assumed that the annual operation of the site would result in the landfilling of a volume of residual materials on the order of 667,000 m 3 which, in their opinion, corresponded to a weight of 500,000 tonnes. [ 31 ] The study also mentioned that the enlargement of the site, once authorized, would allow it to continue serving primarily the communities of the Outaouais and the Laurentians. [ 32 ] Lastly, the Minister, through the MSDEP, proposed to the government that it issue an OIC providing that the Lachute site had to be operated in accordance with the terms and measures set forth in the Impact Study.

It also recommended that the authorization mention the following express limitations: [TRANSLATION] CONDITION 2: LIMITATIONS This certificate authorizes the landfilling of residual materials until January 1, 2022. The total capacity for residual materials disposal and daily capping layers is estimated at 9.3 million metric tonnes, corresponding to a landfill volume of approximately 12.4 million cubic metres . However, this certificate of authorization may be amended, upon request, to complete the landfilling after January 1, 2022, subject to the legislative and regulatory provisions applicable at the time.

Additionally, the maximum annual landfill volume is established at 500,000 metric tonnes or 667,000 cubic metres ; [19] [Emphasis added.] [ 33 ] In June of 2003, the Argenteuil RCM submitted its residual materials management plan. [20] The plan states that the Lachute site has a maximum annual landfill capacity of 500,000 tonnes. It also specifies that the service territory for the site is the one identified in the Impact Study. [ 34 ] On September 3, 2003, a government certificate of authorization was issued (the OIC) . [21] It is the OIC at issue.

It allows for the enlargement of the Lachute site in three separate phases, each requiring the Minister’s pre-authorization by means of a certificate of authorization issued in accordance with

section 22 of the EQA. The OIC establishes the terms and measures for the development, operation, closing down and [TRANSLATION] “post-closure” management of the landfill site. These terms and measures are set forth in the different documents referred to in the authorization, including the Impact Study. [ 35 ] The OIC also sets out other operating conditions imposed on the Régie.

I shall reproduce Conditions 2 and 5, which I believe to be the most relevant: [TRANSLATION] CONDITION 2: LIMITATIONS The total capacity for residual materials disposal and daily capping layers is estimated at a landfill volume of approximately 12.4 million cubic metres. However, the Régie will have to apply for certificates of authorization, as provided in

section 22 of the Environmental Quality Act , for the landfilling of residual materials in three phases. The first phase will be limited to 4.4 million cubic metres. The last two phases will be limited to 4 million cubic metres. Additionally, the maximum annual landfill volume is established at 667,000 cubic metres ; CONDITION 5: ANNUAL OPERATING RECORD AND ANNUAL REPORT The Régie is required to verify the admissibility of the residual materials brought to the site.

For all residual materials brought in, it must request and record in an annual operating record: - the name of the transporter; - the nature of the residual materials; - the source of the residual materials, as well as the name of the producer, in the case of industrial residual materials ; - the quantity of residual materials expressed in weight ; - the nature and quantity of admissible materials used as alternative capping material in the operation of the sanitary landfill site; - the date of their acceptance. [22]

[Emphasis added.] [ 36 ] On October 23, 2003, the Régie applied to the Minister for the issuance of a certificate of authorization under

section 22 of the EQA to begin work on the planned enlargement project. [23] For the purposes of its application, it specified that the annual landfill scenario chosen was 667,000 m 3 . It stated that in 2002, the quantity of residual materials produced by the communities using its services came to 452,000 tonnes and that it expected that this quantity could reach 480,000 tonnes the following year.

It also mentioned that its application was made pursuant to the government authorization of September 3, 2003, and [TRANSLATION] “all the conditions related thereto”. [ 37 ] The Minister accepted the project on March 19, 2004. [24] [ 38 ] On April 14, 2004, the Argenteuil RCM passed a new resolution in order to reconcile the assessments mentioned in its resolution of October 24, 2001, with those indicated in the OIC.

It is relevant to reproduce it here in its entirety: [TRANSLATION] WHEREAS at its special meeting held on October 24, 2001, the Argenteuil RCM Council passed resolutions numbers 01-10-126 and 01-10-127, whereby the Argenteuil RCM, relying on the impact study carried out by the firm SNC-Lavalin Environment and referring to units of weight, pronounced itself in favour of the disposal scenario limiting the annual tonnage of residual materials disposed of at the Argenteuil-Deux-Montagnes sanitary landfill site to 500,000 tonnes; WHEREAS since the passing of these resolutions, the project to enlarge the sanitary landfill site of the Régie intermunicipale Argenteuil- Deux-Montagnes (RIADM) has been approved by the competent government authorities, as evidenced by OIC number 918-2003, concerning the issuance of a certificate of authorization in favour of the Régie intermunicipale Argenteuil-Deux-Montagnes to carry out the project to enlarge the sanitary landfill site on the territory of the City of Lachute, issued on September 4, 2003, by the government of Quebec; WHEREAS said OIC, referring to units of volume and not weight, stipulates that [TRANSLATION] “ the maximum annual landfill volume is established at 667,000 cubic metres ”; WHEREAS in order to define the maximum quantities of residual materials to landfill, the Ministry of the Environment now refers to a measure of volume (in cubic metres), and no longer a measure of weight (in tonnes); WHEREAS the Argenteuil RCM resolutions referred to a measure of weight in tonnes, i.e. a maximum of 500,000 tonnes per year; WHEREAS the coefficient for converting a weight in tonnes to a volume in cubic metres is 1 cubic metre = 0.75 tonne; WHEREAS the maximum tonnage authorized by the Argenteuil RCM in resolutions numbered 01-10-126 and 01-10-127 was 500,000 tonnes per year, which is equivalent, in units of volume, to 666,667 cubic metres; WHEREAS, to ensure concordance between the official documents of the Argenteuil RCM (including the resolutions and the development plan) and those of the government, it would be appropriate to amend the resolutions passed on October 24, 2001, in order to incorporate therein the volume units used by the government; WHEREFORE, it is proposed by Councillor Ronald Tittlit, seconded by Councillor Ellen Lakoff and RESOLVED: 1.

THAT the Argenteuil RCM Council amend resolutions numbered 01-10-126 and 01-10-127, so as to indicate in volume, and not in weight, the quantity of residual materials that can be landfilled annually at the RIADM sanitary landfill site; 2. THAT the Argenteuil RCM set at 667,000 cubic metres the quantity of residual materials that can be landfilled annually at the RIADM sanitary landfill site, in accordance with the provisions of OIC number 918-2003 issued on September 4, 2003, by the government of Quebec.

UNANIMOUSLY ADOPTED [25] [ 39 ] On April 27, 2006, the Régie entered into an agreement with GENS whereby the latter was authorized to operate the Lachute site and bring residual materials there.

GENS’s interest in this case arises primarily out of this agreement. [26] [ 40 ] According to the information in the Quebec Enterprise Register, GENS is a company related to RCI , [27] which itself is a contractual partner of the city of Longueuil under a residual materials disposal contract between them. [28] [ 41 ] A reading of the agreement dated April 27 shows that the Régie abandoned any notion of service territory and instead agreed to accept at its site all the residual materials brought in by the contractor, regardless of their origin.

The agreement also provided that the quantity of landfilled residual materials would be calculated annually as follows: > 402,000 m³ in 2006; > 436,000 m³ in 2007; > 524,000 m³ in 2008; > 642,000 m³ in 2009; > 650,000 m³ for any subsequent years in which the agreement will be in force. [29]

[ 42 ] On April 27, 2009, pursuant to

section 22 of the EQA , the Régie applied to the Minister for authorization to begin Phase III of the enlargement of its landfill site. [30] Its application did not specify any service territory, however, and the quantities mentioned in its application were expressed in terms of metric volume only, an omission and particularity that did not go unnoticed by the MSDEP.

In a letter that it sent to the engineering firm hired by the Régie for its project, the Ministry wrote: [TRANSLATION] Apart from the present questions, which we ask you to answer as soon as possible, please be advised that two points related to the application for a certificate of authorization are currently being examined at the Ministry, i.e., the service territory and the annual tonnage/volume. Concerning the service territory, we note that in the annual operating report for 2008,

section 2, the territory served by the technical landfill site extends to the regions of Montreal, Longueuil and Lanaudière. Are these territories covered by the present application for a certificate of authorization for the future phase 3?

If so, on what criteria are you basing your application? [31] [ 43 ] The Régie, forming a common front with GENS and taking the same position as its business partner, pointed out to the Ministry that the OIC did not specify any service territory for its landfill site [32] and that, on the contrary, it expressly mentioned that the maximum annual landfill volume for this site was 667,000 m 3 . According to the Régie, the questions raised by the Ministry were unrelated to the wording of the government authorization. This answer marked the beginning of the dispute now before us.

The judgment under appeal [ 44 ] The trial judge formulated the questions at issue as follows: [TRANSLATION] a. Does the OIC measure the quantity of waste that the Lachute site can receive in cubic metres, in metric tonnes or in a combination of the two? b. Does the OIC authorize the Régie to receive at the Lachute site waste from territories that are not identified in Table 2.9? [ 45 ] In response to the first question, the judge said he was of the opinion that in not following the recommendations of the MSDEP, the government exercised its discretion under

section 31.5 of the EQA [33] by choosing to express the restrictions on the operation of the site, not in terms of weight, but only in terms of volume. [ 46 ] As for the service territory, the judge believed that Table 2.9, mentioned in the Impact Study, was in fact only a planning tool and was not binding on the operator. He added that the information contained in this table constituted neither a term nor a measure within the meaning of Condition 1 of the OIC.

In short, according to the judge, nothing in the government authorization limited the source of the residual materials that could be landfilled at the Lachute site. The issues on appeal [ 47 ] The appellants would like us to conclude that the OIC does not authorize the Régie to receive residual materials from anywhere in Quebec. They also believe that the government certificate limits the annual disposal capacity of the Lachute site to 500,000 tonnes/year. [ 48 ] The respondents submit essentially the same issues, but formulate them differently.

They ask us declare that the judge did not err in deciding that neither the OIC nor the Minister’s authorization of March 19, 2004, set territorial limits on the source of the waste. Relying on these same authorizations, the respondents also ask us to take note of the fact that the inherent limit on the quantities of residual materials that can be disposed of at the Lachute site is expressed in terms of volume only (667,000 m 3 ). [ 49 ] I would reformulate the issues on appeal as follows: 1.

Does the OIC authorize the Régie or any operator of the Lachute site to process an annual quantity of residual materials exceeding 500,000 metric tonnes? 2. Does the OIC authorize the Régie or any operator of the Lachute site to receive residual materials from outside the service territory specified in Table 2.9 of the Impact Study? Analysis The OIC [ 50 ] As I mentioned in the introduction, even though the OIC of September of 2003 gave rise to the dispute, clearly it also contains the solution.

This authorization therefore commands careful attention. [ 51 ] The OIC in question contains much material information from a legal standpoint which enables us to determine its scope. The information is of two types.

[ 52 ] One set of information is found in the [TRANSLATION] “whereas[es]…”

section of the OIC. This is the information examined by the government for the purposes of its decision. It also describes the long procedural process followed by the application for authorization before its submission to the Cabinet. These sources are of interest even though, for the most part, they are not part of the conditions set forth in the authorization. [ 53 ] I shall reproduce here some of the main [TRANSLATION] “whereas[es]” in the OIC: [TRANSLATION] WHEREAS the Régie filed with the Minister of the Environment, on November 1, 1999, an environmental impact study concerning its project, in accordance with the provisions of

section 31.2 of the Environmental Quality Act ; WHEREAS the government passed the Regulation respecting environmental impact assessment and review (R.R.Q., 1981, c. Q-2, r.9) and its subsequent amendments; WHEREAS said Impact Study was made public by the Minister of the Environment, on July 18, 2001, in accordance with the provisions of

section 31.3 of the Environmental Quality Act ; ...

WHEREAS the Minister of the Environment gave an inquiry and public hearing mandate to the Bureau d'audiences publiques sur l’environnement, on October 4, 2001; WHEREAS the Bureau d'audiences publiques sur l’environnement submitted its inquiry and public hearing report to the Minister of the Environment on March 1, 2002; WHEREAS the Ministry of the Environment produced an environmental analysis report on this project; [34] [ 54 ] I note that in support of the Minister’s recommendation, the brief submitted to the Cabinet comprised three important documents, i.e. the Impact Study, the BAPE report and the report from the Ministry of the Environment.

This information, analyzed as a whole, enables us to determine the intended purpose of the project and to assess the divergence, if any, between the application for authorization and the government’s response to it. [ 55 ] The OIC also shows that the government authorization contains different requirements expressed in the form of [TRANSLATION] “conditions”, including those that are inherent to compliance with the terms and measures mentioned in the Impact Study.

The first condition is worded as follows: [TRANSLATION] IT IS ORDERED, therefore, on the recommendation of the Minister of the Environment: THAT a certificate of authorization be issued to the Régie intermunicipale Argenteuil Deux-Montagnes for its project to enlarge the Argenteuil Deux-Montagnes sanitary landfill site on the territory of the city of Lachute, on the following conditions: CONDITION 1: GENERAL PROVISIONS Subject to the conditions provided in this certificate of authorization, the development, operation, closing and post-closure management of the sanitary landfill site authorized by said certificate of authorization must be in compliance with the terms and measures provided in the following documents : ... [35] [Emphasis added.] [ 56 ] Among the documents formally referred to in the authorization issued by the Cabinet are the four volumes composing the Impact Study: • [TRANSLATION] RÉGIE INTERMUNICIPALE ARGENTEUIL DEUX-MONTAGNES.

Impact Study of Phase II of the Argenteuil Deux-Montagnes Sanitary Landfill Site, Final Report, Volume 1 , prepared by SNC-Lavalin Environment, October 1999, multiple pagination; • [TRANSLATION] RÉGIE INTERMUNICIPALE ARGENTEUIL DEUX-MONTAGNES, Impact Study of Phase II of the Argenteuil Deux-Montagnes Sanitary Landfill Site, Final Report, Volume 2, Schedules , prepared by SNC-Lavalin Environment, October 1999, multiple pagination; • [TRANSLATION] RÉGIE INTERMUNICIPALE ARGENTEUIL DEUX-MONTAGNES, Impact Study of Phase II of the Argenteuil Deux-Montagnes Sanitary Landfill Site, Answers to Questions, Volume 3 , prepared by SNC-Lavalin Environment, January 2001, 123 pages and schedules; • [TRANSLATION] RÉGIE INTERMUNICIPALE ARGENTEUIL DEUX-MONTAGNES, Impact Study of Phase II of the Argenteuil Deux-Montagnes Sanitary Landfill Site,

Summary, Volume 4 , prepared by SNC-Lavalin Environment, February 2001, multiple pagination; [36] [ 57 ] Volume 1 is the principal document of the report. It presents a description of the project and its environment as well as an analysis of the environmental impacts that could result from its implementation. This volume expressly provides the terms and measures

associated with the Régie’s project. [ 58 ] More specifically, it sets out different landfill scenarios according to population growth related to the operation of the site. These scenarios are mentioned in the above-cited Table 2.9. [37] However, the study proposes a single development strategy consisting of an annual landfill plan of 500,000 tonnes. [ 59 ] Volume 2 comprises 12 schedules filed in support of the principal report. This information, essentially technical in nature, does not shed any particular light on the problem we have to resolve. [ 60 ] Volume 3, for its part, contains the Régie’s answers to the questions formulated by the Minister under

section 31.4 of the EQA . Some of these questions concern the terms and measures related to the operation of the landfill site. I shall briefly touch on these answers further on in my analysis. [ 61 ] Lastly, Volume 4 is a

summary of the information presented in Volumes 1, 2 and 3. It is essentially an update of the information contained particularly in Volumes 1 and 2, as it was produced one year later. However, the Régie raises the same points in Volume 4 in support of the justification of its project.

In fact, it reproduces Table 2.9 of Volume 1 [38] in order to establish a correlation between the source of the residual materials, the population concerned and the estimated quantities of residual materials to be landfilled. [ 62 ] Volume 4 essentially sets out the same terms and measures as those mentioned in the principal document. [ 63 ] The OIC also refers to a document of February 19, 2003, describing the technical requirements for the development and operation of the Lachute landfill site. [39] Except for relating the scientific aspects of the project, the information in this document is not determinative for the resolution of this appeal. [ 64 ] A close reading of the four volumes of the Impact Study shows that the Régie, at strategic places in its document, refers specifically or implicitly, as the case may be, to a given population to justify its landfill capacity needs, which are continually expressed in the study in terms of weight. [ 65 ] The OIC also mentions that the Regulation respecting solid waste [40] continues to apply to the Lachute site. [41] This regulation states that any application for a certificate must contain “ a general report on the proposed solid waste storage or elimination project, including information on the region to be served, its population and the nature and quantity of solid waste expected to be stored or eliminated ”. [42] [Emphasis added.] [ 66 ] Let us now look more closely at the conditions of the OIC. 1.

Does the OIC authorize the Régie or any operator of the Lachute site to process an annual quantity of residual materials exceeding 500,000 metric tonnes? [ 67 ] The parties to the dispute do not challenge the idea that the OIC obliges the operator of the Lachute landfill site to comply with the terms and measures provided in the Impact Study. [ 68 ] The Régie points out, however, that the OIC makes no mention of any limitation on the weight of the residual materials that can be landfilled at its site. It argues that this should be seen as a manifestation of executive discretion.

In this case, the government appears to have made its authorization subject to only a volume measure. [ 69 ] In my opinion, the question of the quantities of residual materials that the site can accept is clearly defined by the OIC when read in its entirety, i.e. with the documentation to which it refers. More specifically, I am thinking here of the Impact Study. [ 70 ] We cannot take the volume of 667,000 m 3 out of context and make it the sole binding limit without by the same token disregarding the whole process used to determine this measure.

The Impact Study clearly shows that the number in question is nothing but a conversion based on the particular characteristics of the materials to be landfilled. It expresses in terms of space required at the site the maximum quantity of residual materials that can be received annually. The Régie tried to define this quantity precisely when it applied for the government’s authorization, and it always expressed it using the most appropriate unit in the circumstances, in this case a unit of weight. [ 71 ] That is why, aware that the simplistic

interpretation advanced in its argument clearly differs from the request made, the Régie relies on the government’s discretion to authorize something other than what was applied for.

I shall return to this point further on. [ 72 ] In my opinion, the 500,000-tonne annual landfill scenario proposed in the Impact Study, according to the very terms of Condition 1 of the OIC, is one of its inseparable components and forms part of the limitations imposed on the operator. [ 73 ] I see no contradiction between the restriction provided in Condition 2, which specifies a maximum annual landfill volume, and the restriction mentioned in Condition 1 which, this time by reference to the Impact Study, specifies a limitation in terms of weight. [ 74 ] Both measures (volume and weight) co-exist without difficulty because they have different purposes; one concerns the space occupied by something and the other is used to measure its mass.

In the wake of the Impact Study, the MSDEP report, considered by the government when the OIC was passed, established a concrete concordance between these measures by stating that [TRANSLATION] “[the] annual operation [of the Lachute landfill site] would be on the order of 667,000 m 3 at a density of 0.75 t/m 3 , which is equivalent to 500,000 t”. [43] [ 75 ] The Argenteuil RCM’s understanding of the OIC as it pertains to this question is convincingly reflected in its resolution of April 14, 2004, [44] where it unequivocally recognizes the equivalence between m 3 and t/m 3 .

The evidence shows that a certified extract of this resolution was in fact submitted to the Régie which, from that date, could no longer be unaware of the conversion rate used.

[ 76 ] The compatibility of these two measures is also justified in light of the objectives of the OIC, one of which was to establish the service life of the site with sufficient precision. [45] [ 77 ] Which now leads me to the conditions mentioned in the Impact Study and included in the OIC by reference. [ 78 ] The Régie considered four landfill scenarios of different sizes according to the growth of the population to be served. At the outset, it favoured the weak-growth scenario based on an annual quantity of 300,000 tonnes of residual materials.

It excluded the very- strong-growth scenario (600,000 tonnes) and suggested that the Minister accept an annual landfill scenario of 500,000 tonnes for the following reason: [TRANSLATION] ... Also, and to ensure some leeway, the government OIC that is the object of this application concerns an annual volume of 500,000 t, and it is that scenario that is assessed in this Impact Study. [46] [ 79 ] After having read the Impact Study, the Minister, in accordance with

section 31.4 of the EQA , wanted to obtain complimentary information from the Régie, specifically with respect to the annual quantities of waste to be landfilled. The Régie then provided the following clarifications: [TRANSLATION] As specified in

section 2.7.6 of Volume I, the purpose of the volume of 500,000 t applied for is to enable the RIADM to cope with a possible eventual change in the regional situation without having to apply for a new OIC to increase its landfill capacity.

At present, no significant increase in waste volume is expected in the short term. [47] [Emphasis added.] [ 80 ] As can be seen from the wording of this reply, by expressing a quantity of waste in weight while calling it volume , the Régie itself demonstrates the inseparable link between these two measures for the purposes of determining the actual limits of the authorization. [ 81 ] The Régie also explained to the Minister that the quantity of 500,000 tonnes was only a long-term possibility. [48] Furthermore, it was, according to the Régie, an extreme scenario. [49] The Régie reiterated this idea in Volume 4 of its study: [TRANSLATION] ...

The identified consequences are based on a landfill scenario of 500,000 t/year, which represents a maximum capacity that will probably not be reached. [50] [ 82 ] With respect to the biogas issue, the Régie wrote: [TRANSLATION] The estimate of the quantities of biogas produced is based on the following landfill scenario: 110,600 tonnes/year beginning in 1995, gradually increasing to 500,000 tonnes/year in 2010, and a constant landfill rate thereafter until 2022.

At this rate, and based on the available landfill volume, the site will then be full. [51] [ 83 ] In addition, Condition 5 of the OIC obliged the Régie to write down in an annual operating record [TRANSLATION] “the quantity of residual materials expressed in weight”, a requirement that is incompatible with the Régie’s proposal that the landfill limits for its site can be understood only in terms of volume. [ 84 ] From the foregoing, it is clear that the Régie planned its project in terms of an annual scenario of 500,000 tonnes.

It never produced an environmental study that would justify it to seek to landfill a larger quantity of waste. [ 85 ] The argument now advanced by the Régie is surprising because nobody ever disputed its right to operate the Lachute site according to the only scenario that it proposed and that it has constantly defended. If it does not feel prejudiced by the additional constraint imposed by the government’s limiting it to an annual landfill volume of 667,000 m 3 , we may ask where the difficulty lies. [ 86 ] The answer can likely be found in the following statement of the executive vice-president of GENS, Mr.

Jacques Gaudette: [TRANSLATION] Personally, I try to put as much waste as possible into a given volume. [52] [ 87 ] The evidence in the record shows that for 2010, the operator planned to dispose of a quantity of residual materials weighing 1.15 tonnes for each cubic metre of available space, [53] which would be equivalent to an annual landfill potential of 767,000 tonnes.

These projections are confirmed in part by the tonnage reports registered for the Lachute site from January to May of 2010, suggesting an annual potential that would reach up to 780,000 tonnes. [54] [ 88 ] The Régie maintains that the quantity of biogas emitted into the environment as a result of the operation of a landfill site varies according to many factors, including the density and the size of the waste. [55] It states that the quantities of biogas mentioned in its study are based on a constant landfill rate of 500,000 tonnes/year until 2022 . [56] [ 89 ] If, therefore, using an efficient compacting technique, the Régie is able to landfill within a volume of 667,000 m 3 a quantity of residual materials weighing more than 750,000 tonnes, this determination alone suffices to show that the Impact Study does not comply

with the Minister’s directives, given its silence on the actual quantities of biogas produced by the current operation of the site. These directives oblige the project proponent to identify and assess the environmental impacts of the accepted project [57] and not to measure the consequences of some virtual project. [ 90 ] In addition, considering the substantial quantity of residual materials now processed by the contractor, it is clear that the Régie’s project does not provide more details on the treatment of leachate water resulting from such a sustained operation.

In these circumstances, I do not see how it can be claimed that the current project is the one authorized by the OIC. [ 91 ] I previously indicated that I believed the measures provided in the Impact Study were included among the conditions of the OIC.

I also stated that the scenario proposed by the Régie and explained in its study was one of the constituent elements of the set of parameters establishing the real scope of the government authorization. [ 92 ] To deny the foregoing is tantamount to claiming that the government would have exercised its discretion by giving the Régie the right to process quantities of residual materials that it did not deem necessary to consider in its Impact Study.

Absent indicators to the contrary, I find it confusing that the Minister would have disregarded the environmental consequences of landfilling these excess quantities, while recommending to the government that it accept the project according to a proprio motu set standard. - Public explanations and undertakings of the Régie [ 93 ] While recognizing that the public statements made by the Régie before it filed its Impact Study with the Minister’s office are not part of the conditions set forth in the OIC, and without claiming that they are a source of

interpretation, I believe it would be helpful to refer to them, if only to show their constancy. [ 94 ] For example, the brief of the Fédération de l'UPA Outaouais-Laurentides, filed in the context of the public consultations held by the BAPE, suggested that the Régie’s real objective was to landfill residual materials weighing between 300,000 tonnes/year and 600,000 tonnes/year.

The Régie said that such was not its intention [58] and sent the following denial to the BAPE: [TRANSLATION] Remember that although the application for authorization concerns a maximum annual capacity of 500,000 tonnes, the RIADM does not intend to increase the current landfilling rate . [59] [Emphasis added.] [ 95 ] The Régie also took the initiative of reassuring the population in the region by means of an advertisement that appeared in a local newspaper on November 28, 2001, in which it stated: [TRANSLATION] There is NO INCREASED ACTIVITY during the expansion phase of the landfill site compared with the current operation phase. [60] [Emphasis in the original.] [ 96 ] That was also the BAPE’s understanding of the Régie’s assertions: [TRANSLATION] ...

The Régie does not in the near future expect to reach the maximum annual quantity proposed in its application, i.e., 500,000 t/year. [61] [ 97 ] In addition, these same quantities were mentioned in the different resolutions of the Argenteuil RCM, [62] as well as in its Management Plan of June of 2003, without the Régie voicing any reservations with respect to these assessments. [63] [ 98 ] In short, until October 23, 2003, [64] the Régie had always stated its objectives according to the measures and terms expressed in weight and regional service area.

In any case, that was the BAPE’s understanding of the project and, clearly, that of the MSDEP when its report was submitted to the Minister. [ 99 ] I conclude from this analysis that, pursuant to the OIC, the operation of the site is subject to two complementary units of measure. The operator cannot landfill more than 500,000 tonnes of waste per year, nor can it use more than 667,000 metres 3 of landfill space per year. 2.

Does the OIC authorize the Régie or any operator of the Lachute site to receive residual materials from outside the service territory identified in Table 2.9 of the Impact Study? [ 100 ] The judge said he was of the opinion that nothing in the OIC limited the source of the residual materials landfilled at the Lachute site. For him, Table 2.9 of the Impact Study was only a planning tool, nothing more. He refused to regard the Régie’s representations on this question as restrictive.

He wrote: [TRANSLATION] [53] At trial, much time was spent debating whether the source of the waste is a term or a measure for the purposes of the documents enumerated in Condition 1. However, it seems clear that Table 2.9 is neither a measure nor a term, regardless of the accepted definition of these words. It is a set of hypotheses or conjectures. The expression “guesstimate” comes to mind. The Court therefore rejects this argument. [65]

[ 101 ] For the same reasons that led me to conclude that the measures mentioned in the Impact Study were included in the conditions of the OIC, I believe that the Régie deliberately limited the service territory of its landfill site to that mentioned in Table 2.9 and that the government authorization allows it to serve only the population identified in this table, which, it should be noted, was prepared to justify its landfill capacity needs. [ 102 ] The ministerial directive of November 13, 1996, in the

chapter entitled [TRANSLATION] Technical Description of the Project, [66] asks the project proponent [TRANSLATION] “to describe the proposed project and the manner in which it intends to carry it out ” [emphasis added]. Specifically, the Minister asks the project proponent to state and describe in its application the major characteristics of its project, including: [TRANSLATION] The extent of the service region and the size of the population; The target clientele of the project (municipalities, institutions, industries, purification stations, incinerators, etc.); ...

A description of the measures for controlling the nature, the quality and the source of the waste received, as well as the measures taken in case of the non-compliance of a delivery. [67] [Emphasis added.] [ 103 ] The Impact Study seeks to respond specifically to this requirement. Chapters 2 and 3 of Volume I deal respectively with the justification and description of the project and specify the source of the residual materials (Table 2.9).

The ministerial directive places this information under the heading [TRANSLATION] Terms and Conditions and, as we have seen, these terms are included in the OIC under its Condition 1. [ 104 ] With his directives, the Minister clearly indicated to the Régie the parameters within which he intended to exercise his discretion by including in his considerations the issue of the source of the waste. He chose to require this information because he deemed it necessary for making his decision. [ 105 ] Furthermore, when the issue depends on the scope that must be given to the OIC issued under

section 31.5 of the EQA , the real question is not so much what it prohibits, but rather what it actually authorizes. [68] The Impact Study does not suggest that the Régie based its application on a desire to serve, at its discretion, any territory in Quebec.

It is therefore not surprising to note that the OIC does not envisage this possibility. [ 106 ] There is also Condition 5 of the OIC which obliges the Régie to record in an annual operating record the source of the residual materials, an obligation that takes on its full significance if a service territory is linked to the landfill site. [ 107 ] I also note that one of the schedules to the Impact Study incorporated in the OIC reproduces the Régie’s environmental policy, [69] in these terms: [TRANSLATION] ● ... in order to offer member municipalities of the RIADM and other municipalities in the region services adapted to the new environmental realities. ● to make available to the municipalities in the region a sanitary landfill site that uses reliable technologies that are safe for the environment and for the health of the population and the workers. [Emphasis added.] [ 108 ] To maintain, as the Régie and its business partner GENS do, that the Lachute site is not subject to any service territory is to not only deny the reality of the conditions of the OIC, but also to claim that the ministerial directive is meaningless and that large tracts of the Impact Study were ignored for the purposes of the government authorization.

I cannot agree with these propositions. [ 109 ] The BAPE sessions gave the Régie an opportunity, not once but twice, to publicly reiterate that its project was linked to a well- defined service territory, while rejecting the hypothesis that it could one day receive residual materials from, for example, the Island of Montreal. [70] [ 110 ] Subsequently, the MSDEP, in its environmental analysis report, justified its recommendation by devoting a whole

section of its study to the supply and demand for the disposal of residual materials in the regions concerned by the services provided by the Régie. [71] Its authors defined one of the issues of the project as follows: [TRANSLATION] Considering the needs of the Laurentian and Outaouais regions and the intentions expressed by the municipal authorities of Lachute and of the Argenteuil RCM concerning the orientations of the residual materials management plan now being carried out, the maximum annual landfill capacity applied for by the project proponent, i.e. 500,000 t, appears justified to us. [72] [ 111 ] In my opinion, there is an inseparable connection between the population identified in Table 2.9 of the Impact Study and the Régie’s application in which it requests authorization to landfill a maximum quantity of 500,000 tonnes of residual materials annually.

The government authorization makes it impossible to ignore this connection. [ 112 ] As evidence extrinsic to the OIC, the Minister’s press release, issued when the passing of the OIC was announced, clearly states that a service territory was linked to the Lachute site: [TRANSLATION] The authorized enlargement, which essentially corresponds to the residual materials disposal needs of the population of the Laurentians and Outaouais regions , is therefore fully justified. [73] [Emphasis added.] [ 113 ] Finally, I would add on this question that the Minister’s directives expressly obliged the Régie to describe its efforts to increase the awareness of the affected population to encourage them to adopt behaviours to reduce the production of solid waste. [74] I do not see how the implementation of such a communication plan is possible if, to begin with, it is not known for whom it is intended, unless, of course, the project proponent engages in a provincial campaign to raise public awareness, which was not the case here.

Conclusion [ 114 ] In these times, when our society is regularly faced with basic ecological issues, when the stakes require that the scope of a government decision in this regard be determined or that the environmental legislation be interpreted, I do not hesitate to say, in case of doubt and within the limits of judicial authority, that the courts should lean towards any

interpretation that favours the full development of the right to a healthy environment, to its protection and safeguard.. [ 115 ] I am of the opinion not only that the Régie circumvented its environmental commitments to the population through a creative

interpretation of the OIC, but above all that it shirked its legal obligations by operating a landfill site to dispose of significant quantities of residual materials, a proportion of which had not been included in the mandatory assessment procedure set out in the EQA. [ 116 ] Our Court has already ruled on the scope of

section 31.5 of the EQA and, more specifically, on the government’s discretion when it studies an application for a certificate of authorization: [TRANSLATION] [29] This last

section [35.1 E.Q.A. ] gives the government broad discretion when it comes to issuing a certificate of authorization to operate a dry materials deposit site.

Section 3 of the Act respecting the establishment and enlargement of certain waste elimination sites illustrates this discretion, since the government can impose standards different from those provided in the Regulation respecting solid waste to better protect the environment, particularly concerning the conditions for establishing, operating and closing the sanitary landfill site or the dry materials deposit site covered by a project. ... [39] The legislature delegated to the government the responsibility of issuing a certificate of authorization for the establishment of a residual materials disposal site such as a dry materials deposit site (sections 31.5 and 55 E.Q.A. ).

Section 31.5 of the E.Q.A. does not provide any guidelines for the government’s exercise of its discretionary power when making such an administrative decision. The government decides whether or not it is appropriate to act.

It is responsible for protecting the public interest in environmental matters and thus is free to choose what it deems the best solution on that basis. [75] [ 117 ] This provision enables the Cabinet to impose on the project proponent all the conditions it deems appropriate. [76] The judge did not hesitate to recognize this reality. [77] However, I am not prepared to agree that in this case, when the government exercised its discretion, it chose, for no apparent reason, to give the Régie more than it asked for, without even being informed about the real possibility of the site accepting additional tonnage. [ 118 ] The wisdom underlying the government decisions prompts us to prefer an

interpretation based on the objectives sought by the EQA . The business relationship between the Régie and GENS obscures this reality. [ 119 ] Authorized by the second paragraph of

section 31.5 of the EQA , the Cabinet had the necessary discretion to oblige the Régie to comply with an additional condition, that of limiting the disposal capacity of the site to a volume of 667,000 m 3 of residual materials. [ 120 ] Bearing in mind that weight and volume are two measures that can exist side by side, it can be inferred from their simultaneous use that when the first of the two is attained, the application of the other lapses. [ 121 ] As for the service territory, this is an essential notion for planning the landfill capacity needs, as evidenced by the Impact Study. [ 122 ] Consequently, I would allow the appeals with costs against the respondents and set aside the judgments of July 22, 2010.

I would also dismiss with costs against the respondents GENS and RCI the declaratory conclusion sought in their motion for declaratory judgment and answer in the negative the question raised in that motion in the following terms: [translation] DEclareS that the operator of the Lachute landfill site may not receive or accept for disposal purposes residual materials from outside the service territory identified in the Impact Study (Table 2.9). [ 123 ] Lastly, I would allow with costs the application for an injunction and issue the following order:

[translation] OrdERS Gestion environnementale Nord-Sud inc., the Régie intermunicipale Argenteuil Deux-Montagnes, as well as any other operator of the Argenteuil Deux-Montagnes sanitary landfill site, not to receive or dispose of residual materials at the technical landfill site of the Régie intermunicipale Argenteuil Deux-Montagnes in Lachute except from the service territory identified in the Impact Study of Phase II of the sanitary landfill site in question (Table 2.9), and only up to a maximum of 500,000 metric tonnes or 667,000 cubic metres per year, the attainment of the first of these levels causing the application of the second to lapse . GUY GAGNON, J.A.