The following is a tranlsation of the text of a page appearing on the web site of the Association des sports nautiques des lacs St-Joseph et Ste-Marie. For the original French page, click here.

The municipality risks VERY VERY VERY much

The municipal bylaw restricting access to navigable waterways is currently challenged in court by a rentor of chalets, who originally wanted to reduce the minimum rental period for entitlement to an access sticker issued by the municipality . The minimum period is currently 30 days. Requests were made to amend the regulation on an experimental basis to 7 days in the case of a rental from a lodging establishment during the 2006 season, and to verify the impact of this measure. The majority of the various participants on the consultative committee were in agreement with this proposal, but the municipality refused to implement it. The case was brought before the courts.

On 27 February 2007, a Superior Court judge notably rejected the admissibility of an expert report that the municipality wanted to include to support its case. The report had cost the municipality over $14,000 and set out the environmental arguments supporting the existence of the municipal bylaw. Dissatisfied with this rejection, the municipality brought the interlocutory judgement directly to appeal. The judgement of the Court of Appeal was made on October 18, 2007 and the three judges unanimously confirmed the interlocutory judgement of the Superior Court. Click here to read the decision of the Court of Appeal. The judgement written by Judge Thibault is very clear, especially paragraphs 22 to 26:

[22] In my opinion, the trial judge was right to reject the expert report as it aims to establish a fact which is not related to a question in litigation.

[23] In effect, the expert report, which aims to establish the effectiveness or otherwise of measures chosen by the appellant to protect the environment, is not connected to a question in litigation.

[24] The real question that arises in this case is whether the means used by the appellant to achieve the objective of the regulation - the protection of the environment - are within the competence or not of the municipal authority. This depends on the answer to the question: do the means chosen by the appellant relate or not to navigation? In other words, I am of the opinion that the degree of efficiency of the means developed by the appellant to protect the environment constitutes a question alien to that raised in the litigation concerning the true nature of the bylaw.

[25] To authorize the filing of this expert report would have the effect of diverting the litigation from its true purpose and allow it to embark on the environmental issue. But this is not the question that is at the heart the debate. Indeed, there is no doubt that a municipal authority has jurisdiction to regulate environmental issues and they are crucial issues. There is also no doubt that certain measures to reduce the use of motor boats on waterways are likely to reduce the "potentially" negative effects on the environment, in the words of expert report.

[26] But I repeat, this is not the question that arises in this case. It is rather to examine the measures imposed by the appellant and decide whether or not they govern navigation on the affected waterways.

[27] For these reasons, I propose that the appeal be dismissed.

The challenge to the bylaw before the Superior Court of Quebec continues and money is still being spent. The Superior Court will hear the case at the Palais de Justice de Saint-Jerome, November 17 to 19, 2008.

Given the current jurisprudence to the effect that navigation is a federal jurisdiction, the comments of Judge Thibault of the Court of Appeal on the fact that the environmental arguments will not be considered, the fact that navigation is a right in Canada (and not a privilege - such as driving a car), and all the jurisprudence on this question, there is a very strong likelihood that the municipal bylaw, and its predecessors, concerning access to the lakes, will be invalidated. Therefore, this case will become jurisprudence across Canada.

If the city loses its case, we could find ourselves in a situation where no municipality in Canada would be able to oppose a permit application for a citizen to build an access ramp for boats on his private land. It is expected that many permit applications will be filed within days of the judgement. Some observers also predict that several other things that are directly or indirectly necessary for navigation will be very difficult to prohibit by municipalities or provinces. For example, it may be that the judgement could ensure that a citizen who needs a dock for his boat will automatically have the right to install one on the shore of his property, even if a provincial or municipal regulation prohibits it.

The municipality would also have to reimburse the full cost of all stickers purchased in 2006, 2007 and 2008 because they were sold under an invalid bylaw. This will represent a disbursement of about $120,000. And if it does not, it is almost certain that a citizen will apply for a class action suit against the municipality (which will cause other legal costs for the municipality).

Finally, since the municipality will no longer receive sticker revenues as before, it will be forced to use its general budget to pay for patrollers, employees at the boat landing and all other expenses related to navigation (about $40,000 per year ).

In all, given the money already spent and expenditures to come, including expenses for litigation, the total cost of the whole nautical file for the municipality could easily exceed $250,000 by the end of the mandate of the current Municipal Council in November 2009. This amount is not counting all the money that other municipalities in Canada will have to reimburse the to their citizens for having charged for access to waterways in recent years. We speak here of millions of dollars.

This is certainly not something that the Municipal Council considered well in not favouring mediation in 2006 ... The other municipalities will not be very happy with Saint-Adolphe-d'Howard's Municipal Council if it actually loses its case, as many observers expect. Not having favoured mediation in 2006 was a monumental error.

Click here to access the nautical page on the website of st-adolphe.info.

Note: For readers outside Saint-Adolphe-d'Howard, know that the party of Mayor Pierre Roy, Vision St-Adolphe, was elected in November 2005 with the promise of no longer having to use the courts to resolve problems with its citizens ...

Translation from page updated on July 24, 2008