On February 5, 2024, the Superior Court of Québec (the "Court") rendered a judgment in Gestion NDI Champlain c. Ville de Gatineau (available in French only), which provides useful insight into the rules surrounding the demolition of municipally protected heritage buildings that have become dilapidated or dangerous.

For several years now, there is a tension between conflicting statutory frameworks governing dilapidated immovables—some regulations govern aging buildings and seek to protect their heritage value, while other regulations authorize demolition. A major trend in municipal bylaws is to give precedence to bylaws protecting immovables over those calling for their demolition by introducing prerequisites that make it difficult for owners to get demolition permits for dangerous buildings.

In its recent decision, the Court pointed out that the exceptions provided for in section 231 of the Act respecting land use planning and development1 (the "Act") allowing it to order the demolition of a dilapidated or dangerous building cannot be limited by municipal bylaws governing aging buildings or the protection of heritage buildings.

Background

Summary of Facts

The building at the heart of this case is a two-storey, single-family maison allumette, or matchstick house (the "building"), built in 1910 that has not undergone any heritage conservation work over the years. In 2008, the City of Gatineau (the "City") listed the building as heritage property, arguing that it had significant heritage value.

In November 2020, the building was acquired by a real estate developer who wanted to demolish it and merge the freed-up space with adjacent land to build a ten-storey rental housing complex. An inspection of the building revealed several deficiencies, including the possible presence of asbestos and lead-based paint, a major crack, shifted concrete, a cavity prone to water infiltration, and a high risk of non-visible damage to the front foundation wall. Given the building's condition, a demolition request was submitted to the City in accordance with the procedure set out in the demolition bylaw.

The City's Decision

Despite reports from both the City and the developer confirming the building's advanced state of dilapidation, the City's local heritage council recommended that the demolition request committee (the "Committee") not approve the demolition. After months of discussions with the municipality and consideration of various courses of action, including moving the building, the Committee rejected the demolition request—a decision that was upheld by the municipal council following a request for review.

To obtain a demolition permit, the developer applied to the Court under section 231 of the Act, which allows the court to order the demolition of a building that is likely to constitute a danger to people.

Superior Court Proceedings

Section 148.5 or 231 of the Act?

From the outset, the City relied on section 148.0.5 of the Act, which applies to demolitions carried out under normal circumstances, to argue that the recourse was inadmissible because the Minister of Culture and Communications had not been notified of the application to demolish a heritage building, as required under section 148.0.5. For the City, this omission would be fatal.

The Court dismissed that argument and found that section 231 of the Act referred to parameters that fell outside the scope of the requests covered by section 148.0.5 of the Act. The Court stated that, since 2021, section 148.0.5 of the Act has been part of a series of provisions that establish a process for demolition requests to be reviewed and authorized by a committee of elected municipal officials tasked with reviewing demolition applications and assessing the heritage character of buildings slated for demolition. In this regard, the Court pointed out that the Act specifies the factors that elected officials can consider during the decision-making process:

[58] The law specifies the factors that elected officials can consider in deciding whether to allow demolition, namely: the condition of the immovable that is the subject of the application, its heritage value, the deterioration of the quality of life in the neighbourhood, the cost of its restoration, the intended use of the vacated land and, when the immovable includes one or more dwellings, the prejudice caused to lessees and the effects on housing needs in the area.

[59] Such factors apply to any demolition request under what could be termed normal circumstances, as opposed to demolition requests for buildings that are public safety hazards.

The Court pointed out that section 231 of the Act deals with dangerous structures that do not fall within the usual demolition analysis framework. That the structure is a threat to public safety is what makes it possible to distinguish between the two frameworks. The Court also pointed out that the heritage factor does not exempt a building from an application for demolition brought before the Court under section 231 of the Act. Moreover, the Act does not add any procedural elements or provide separate assessment criteria for buildings classified when determining the application of this provision.

Superior Court's Power Under Section231 of the Act

The City claimed that the action taken by the developer was inappropriate; according to the City, the developer should have proceeded with a judicial review or mandamus. The City argued that the Superior Court should defer to the City's discretionary power (exercised through the municipal council) which could then be opposed by means of judicial review or mandamus. It maintained that, in exercising the powers provided for under section 231 of the Act, the Superior Court exercised a power that is reserved for the municipal council.

While not commenting on the validity or basis of the other remedies raised by the City, the Court ruled that opting not to use those procedural avenues does not automatically preclude the exercise of the jurisdiction conferred on it by section 231 of the Act. These are two independent legal mechanisms.

The Danger to People Posed by the Structure

The Court stated out that the safety risk assessment is conducted at the time of trial and considers not only the building's occupants (not an issue in this case), but also people who may find themselves in the building, for example by entering without permission, as well as neighbours, passers-by or people working on the building. The Court emphasized that safety concerns are at the heart of the analysis surrounding the application of section 231 of the Act:

[75] Section 231 of the Act states:

231. Where a structure is in such a condition as to constitute a danger to persons or where it has lost one-half of its value through decay, fire or explosion, the Superior Court may, on application by the responsible body, the municipality, or any interested person, order the carrying out of the works required to ensure the safety of persons or, if there is no other useful remedy, the demolition of the structure. (...)

Where the matter is exceptionally urgent, the court may authorize the responsible body or the municipality to carry out the work or to proceed with the demolition without further delay, and the responsible body or the municipality may claim the cost thereof from the owner of the building. The court may also, in all cases, enjoin the persons living in the building to vacate it within the time it fixes.

For the purposes of this analysis, which is supposed to be free of any interference in order to ensure public safety first and foremost, it is therefore not necessary for the Court to take into consideration other related factors, such as the heritage value of the building.

The Possibility of Another Remedy

The Court pointed out that section 231 of the Act nevertheless requires an assessment of the proposed remedies based on their usefulness. That means that the Court must assess the usability of the building as well as its use and functionality. It is at this stage of the analysis that the Court can consider the heritage aspect and the value of any heritage features.

Conclusion

This decision is important in that it confirms that the Court may consider a case involving the demolition of a building independently of the local mechanisms normally applicable when that structure is likely to constitute a danger to people.

It should be noted, however, that the City of Gatineau has announced its intention to appeal the decision.

Footnote

1. Act respecting land use planning and development, CQLR, c A-19.1.

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