By Veronika Kiryanova 
Lawyer 

Summary

In this article, the author comments on and analyzes a Superior Court decision that establishes the limitations of constitutional law in municipal matters and addresses the various legal aspects of the right to vote in a referendum.

INTRODUCTION

Québec Mérite Mieux c. Ville de Québec[i] (the “Decision”) concerns a project planned by Québec City (the “City”)  for a tramway transit system. The large-scale project, which had been gestating for over 15 years, was challenged by a residents’ association in an originating application for judicial review, for an injunction and for redress under Quebec’s Charter of Human Rights and Freedoms and the Canadian Charter of Rights and Freedoms (collectively the “Charters).

Québec Mérite Mieux is a non-profit association of residents of the capital of Québec, created specifically for the purpose of opposing the tramway project. A number of other plaintiffs participated in the proceedings on different grounds.

Since 2005, the City has wanted to develop and implement a mass transit system, including a tramway “by 2021”. In 2009, the City created a Sustainable Mobility Task Force to coordinate the project and held preliminary public consultations on urban planning issues and orientations. Following the public consultations, a report on sustainable mobility was produced. In 2010, the City produced a Sustainable Mobility Plan and held further public consultations with its citizens. A consultation report on the draft Sustainable Mobility Plan was then produced and the Agglomeration Council established a coordination structure (Steering Committee) to oversee and guide the studies relating to the tramway.

In 2014, the Steering Committee asked that alternatives to the tramway be explored since public funding was insufficient and suggested that a rapid transit bus system be considered. In 2015, one study concluded that the alternatives were feasible, but that a rapid transit bus system would reach its maximum load more expeditiously. As a result of this study, city officials announced that they were choosing a rapid transit bus system as the preferred option to meet medium-term needs at lower cost.

In the spring of 2017, city officials changed their position and announced the end of the rapid transit bus project. The City created a new Sustainable Mobility Advisory Committee and held further public consultations. An independent body was engaged to improve citizen participation. At the end of the process, more than 11,000 people were consulted and agreed that the City needed a mass transit system. The consultation did not specifically address how this was to be achieved.

That same year, following municipal elections held in November, the idea of a tramway resurfaced. The following year, the tramway project was submitted to the Quebec Government.

On March 16, 2018, an agreement in principle was signed between the provincial government and the City regarding $3 billion in funding for the streetcar project. On April 4, 2018, the City’s Agglomeration Council ratified the agreement. On June 14, 2019, the National Assembly enacted the Act respecting the Réseau structurant de transport en commun de la Ville de Québec[i]. On November 5, 2020, after conducting public consultations, the Bureau d’audiences publiques sur l’environnement (the “BAPE”) recommended not proceeding with the tramway project. Despite that opinion, on April 6, 2022, the provincial Government adopted Décret 655-2022 concernant la délivrance d’une autorisation à la Ville de Québec pour le projet de construction d’un tramway entre les secteurs Chaudière et D’Estimauville sur le territoire de la ville de Québec[ii] [order-in-council is in French only]. 

Following these events, the plaintiffs, who refer to themselves as citizens who want consultation via a referendum, filed a lawsuit against the City, the City’s Agglomeration Council, the Attorney General of Québec and the Attorney General of Canada.

The plaintiffs agreed that a transit system is necessary, but they disapproved of opting for a tramway as it would greatly affect their living environment, the preservation of the city’s historical and heritage character and would be harmful to the environment. According to the plaintiffs, this purely political decision regarding this particular form of transportation infringes their fundamental rights and must be subject to judicial review.

It is interesting to note that in the course of the 2022 proceedings, two judgments were rendered by Samson, J.S.C., the first refusing the interlocutory injunction[iii] and the second refusing to disclose to the plaintiffs the confidential documents relating to the Cabinet deliberations concerning the tramway project[iv].

In mid-February 2023, the plaintiffs formally announced on their website that they would not be appealing the Decision.

A. Originating Application for judicial review and a declaratory judgment of nullity, inoperability and unconstitutionality

Notwithstanding the many factual issues addressed by Samson, J.S.C., the essence of the plaintiffs’ argument is the nullity of Décret 655-2022.

First, the judge considered the issue of whether the action had been brought within a reasonable period of time, as the plaintiffs had filed the application 78 days after publication of the Décret (Order-in-Council), whereas the reasonable period of time established by case law is normally capped at 30 days. Given the exceptional situation in dispute, the scope of the action and the discretionary power granted to the judiciary, the judge considered that 78 days was reasonable.

Regarding the action to the Order-in-Council, Justice Samson, j.c.s., noted that the Superior Court has the power to review a Cabinet decision as it would a decision of an administrative tribunal. He then examined two aspects of the issue: (1) the scope of the exercise of ministerial discretion and (2) the limits of the Minister’s jurisdiction and whether that jurisdiction had been exceeded.

The Environment Quality Act[i] (the “EQA”) and the Regulation respecting Environmental assessment and review applicable to a part of the northeastern Québec region[ii] provide for a ministerial approval procedure for certain projects, including the construction of a guided or rail transit system. The tramway project is therefore covered by this legislation and must receive government approval, on the recommendation of the Minister. The process that leads to the decision is set out in section 31.5 EQA.

The plaintiffs claimed that in its decision-making process, the provincial government exceeded its jurisdiction by ignoring the BAPE recommendations. In this regard, the judge noted that the issue has been settled by various judicial authorities and that the Quebec government is under no obligation to follow the BAPE’s recommendations, because proceedings before the BAPE are a consultation process rather than a decision-making process. Furthermore, as regards the merits of the Cabinet decision, the Court must be careful to refrain from examining the advisability of the decision; what it must do is ensure that the decision is not fanciful, that it was not made in bad faith, that it considered the objectives pursued by the enabling power and that the rules of natural justice and procedural fairness were followed. In this case, there was abundant evidence before the Court demonstrating that the decision-making process had been carried out judiciously, both by the City in deciding on the kind of public transport and by the provincial government in adopting the Order in Council. The judge also pointed out that social acceptability is not an express legislative prerequisite for authorizing a project. In short, Décret 655-2022 was a legitimate decision made by Cabinet within its broad discretion[iii]. The application for authorization was therefore denied.

B. Application for an injunction under the Environment Quality Act

The plaintiffs claimed that the eventual construction of the infrastructure required for a tramway will alter the City’s heritage landscape. As the basis for their claim, they rely on section 19.1 EQA, which gives the Superior Court power to order injunctive relief. However, once an ordinance authorizing the preparatory work is legally issued, the plaintiffs no longer had a judicial basis for obtaining an injunction against the government authorities.

The plaintiffs also challenged several regulatory provisions on the grounds they would have the effect of prohibiting, or of not requiring, the holding of a referendum. In this regard, the plaintiffs argued that their fundamental rights under the Charters had not been respected. However, despite an array of arguments, the judge’s response was always the same: the right to a referendum is not protected by the provisions of the Charters. Nowhere in the legislation is there an obligation imposed on the City to consult the population by referendum, and this follows from the Supreme Court’s dictum that “there is no constitutional right to vote in a referendum”[iv].

The issue of the referendum was also raised in terms of the democratic rights of the plaintiffs, namely allegedly unfulfilled election commitments. The Plaintiffs submitted that the sanction for this should be a referendum to invalidate the project. This raised a new issue that was answered by an old principle: a candidate cannot commit the City. In the words of the judge, [translation:] “Once elected, municipal candidates express themselves collectively through municipal resolutions and bylaws […] An elected candidate, with the best intentions in the world, cannot alone decide the fate of an issue, such as the tramway” [v].

Basically, the following are the main points made in the Decision: there is no statute that gives the courts the power to sanction breaches of political exercise; the right to vote does not apply to referendums or municipal elections; there is no formal right to vote in a referendum, and no court can compel the holding of a municipal referendum on the basis of the wording of the Charters. The application was therefore dismissed.

C. Application for redress under the Charters

The plaintiffs alleged that their fundamental rights, namely the rights to life, health, liberty and security, the right to enjoyment of property and the right to social economic freedom, had been violated in several ways. In this regard, the Court held that neither the City nor the Government of Quebec had committed a fault or abused its rights. Consequently, the request for compensation was dismissed.

III. COMMENT

This decision is a perfect illustration of the complexity of the issues that can arise in the context of a challenge to a government’s order-in-council and its major political actions, particularly when various fundamental rights are at issue.

In his very detailed decision, both as regards the facts and the law, the judge repeatedly emphasized the place occupied by the courts in our society. He reiterated that the courts do not have a political role and that they are not in the business of deciding what is good for the people. The role of a court of law is to ensure the legality of decisions made by the various levels of government, not their advisability in the circumstances. The courts intervene after the fact, whereas in this case, the judge was asked to intervene before the fact[vi].

As for pure democracy, it is interesting to note that despite various attempts by the plaintiffs to invoke fundamental Charter rights, the crux of the dispute was the issue of the right to vote in a referendum. The question arises as to whether this a new issue.

The question may be answered in the affirmative, but only in part. There is very little case law dealing with the right to a referendum in the same circumstances as this case. However, the issue was addressed in part in Baie-D’Urfé (Ville) c. Québec (Procureur général)[vii], in which several cities in the Province of Quebec sought the nullity and inoperability of the Act to reform the municipal territorial organization of the metropolitan regions of Montréal, Québec and the Outaouais [viii]. In that case, the cities implicitly acknowledged that it is not the role of the courts to rule on the appropriateness of legislation, but they argued that the Government’s refusal to submit the legislation to a referendum violated a fundamental principle of democracy. In response to their argument, the Superior Court judge correctly pointed out that [translation:] “the failure to proceed by referendum has absolutely nothing to do with the fundamental freedom of expression guaranteed by the charters”[ix].

A new and very interesting aspect of this issue was raised in the Decision by the plaintiffs as to whether there is such a thing as a referendum to correct allegedly broken election promises. This issue has never before been addressed by the courts and the judge responded succinctly as follows [translation:]  ”there is no law that gives the courts the power to sanction breaches of the democratic process”[x]. He stressed that asking the courts to intervene in that process would be detrimental to democracy[xi].

What is important to retain from the Decision is that at all times relevant to the dispute, despite the position of the plaintiffs, democratic principles had been respected. As early as 2001, in the context of a challenge to the municipal mergers imposed by the legislator, the Superior Court had occasion to make the following observation: [translation:] “It is one thing to express one’s opposition, but it is quite another to have one’s opinion prevail, especially outside an election period. A democratically elected government can decide to impose the measure it considers justified to achieve an objective it believes is necessary and that it is based on numerous recommendations ”[1].