Did Judge Michel Déziel of the Superior Court of Quebec err in law when he quashed, last July, the municipal resolution granting a minor exemption to the residence located at 79 Fraser Street and that he ordered its demolition?
This is the question to be answered by the three judges of the Court of Appeal of Quebec who listened to the arguments of the lawyers of the City of Gatineau, the legal representative of Patrick Molla, the owner of the house, as well as the lawyer for his neighbours.
The City of Gatineau is seeking to overturn the decision of the court of first instance and wants to avoid demolishing the house.
” The judge should have just determined whether the decision [d’accorder une dérogation mineure] was reasonable in the circumstances. »
In court, lawyers for the City of Gatineau argued that Judge Déziel was wrong when he determined that the minor exemption, which allowed Patrick Molla to build his house on Fraser Street even though it did not respect zoning regulations, was illegal.
The judge had to refrain from analyzing the request for a minor exemption. This, in my view, is where the trial judgment errs.
declared Me Emmanuelle Campeau.
The judge carries out the analysis himself as if he were vested with municipal powers to come to the conclusion that the derogation is [dans les faits] major
she adds.
The lawyer for the neighbors of 79 rue Fraser, Yves Letellier
Photo: Radio-Canada
Me Yves Letellier, the lawyer who represents the neighbors of Patrick Molla, maintains for his part that the judge applied the proper standard of review of the municipality’s decision
but did not maybe not expressed in the right way
.
Municipalities must stop using minor exemption by-laws as a catch-all to correct all their mistakes
he pleaded. It needs to be clear: tighten your zoning restrictions or make your minor exemption regulations more specific.
A minor derogation
A minor derogation should only be used to correct a minor situation, reminds Richard LeBlanc, lawyer specializing in construction law and real estate.
Your fence must be 1.5 meters? Unfortunately due to some topography you are 1.45m down. There is no one who is going to die for a small distance like that. The minor derogation is always to compensate for small things like that
he gave as an example.
The construction lawyer, Me Richard LeBlanc.
Photo: Radio-Canada
In the case of 79 Fraser Street, he notes, the City of Gatineau wanted to repair the error of the official who issued a building permit to Patrick Molla, by granting a minor exemption to his project.
” It’s almost defending the indefensible to claim that it was a minor override, because it allowed a monster to be built that should never have been built. »
We tried to solve the problem through the law, when that is not the purpose of the law
he said. I have the impression that the court of appeal will uphold the judgment.
Will there be demolition or not?
The City wants to avoid demolishing 79 Fraser Street for purely economic reasons, says Me Letellier.
If there is demolition, it will cost them the replacement of this house, in reimbursement to Mr. Molla, somewhere between three and four million dollars
he assesses. If it’s not demolished, the City will have less than a million dollars in damages to pay to the parties, a pretty significant saving.
” My clients wanted the demolition and that’s what was wanted in the superior court. The City was not satisfied with this judgment, it is its right and it appealed. »
Patrick Molla has already hinted through his lawyer Éric Olivier that he did not want to appeal the Superior Court’s decision and that he was open to the idea of having his house demolished.
Patrick Molla, the owner of the residence located at 79, chemin Fraser, in Gatineau
Photo: Radio-Canada
The demolition, he is not happy with that, but at least there is a decision, there is a path that opens. He tells himself that he will demolish it, respect the court orders and then he will turn to the City and tell them that he has been given a permit, then his house is demolished.
summarized Me Olivier.
We are all familiar with the case law in this regard. My client is quite clear in telling himself that at least he will get over it. That’s the solution my client sees.
The case was taken under advisement.
With information from Rebecca Kwan
Reference-ici.radio-canada.ca
Why would thr City have to pay a dime to Mr. Molly if they lose this lawsuit? Street setback requirements are building 101 regulations, not rocket science. The property was surveyed and no doubt the house was architect designed. It was built by professionals whose job it is to know building regulations. Wnether or not a city official erred either deliberately or accidentally Mr. Molla had an obligation to do his due diligence through the building process. He did not. Furthermore, my understanding is that he also poured a concrete boat launch into the Ottawa River in contravention of provincial law – a complaint was filed jointly by City of Gatineau and Ottawa Riverkeeper to the Ministry of the Environment. In my view Mr. Molla wanted to build what he wanted to build, neighbours, and laws be damned. The house and launch should be removed at Mr. Molla’s expense. Enough is enough for both the neighbours and the taxpayers.