Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village)

Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village)
Collection
Supreme Court Judgments
Date
2004-06-30
Neutral citation
2004 SCC 48
Report
[2004] 2 SCR 650
Case number
29507
Judges
McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis; Deschamps, Marie; Fish, Morris J.
On appeal from
Quebec
Subjects
Constitutional law
Municipal law
Notes
SCC Case Information: 29507
Decision Content
Congrégation des témoins de Jéhovah de St‑Jérôme‑Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650, 2004 SCC 48
Congrégation des témoins de Jéhovah de St‑Jérôme‑Lafontaine,
Roberto Biagioni and Denis Léveillé Appellants
v.
Municipality of the village of Lafontaine, Harold Larente
and Attorney General of Quebec Respondents
and
Seventh‑Day Adventist Church in Canada, Evangelical
Fellowship of Canada and Canadian Civil Liberties Association Interveners
Indexed as: Congrégation des témoins de Jéhovah de St‑Jérôme‑Lafontaine v. Lafontaine (Village)
Neutral citation: 2004 SCC 48.
File No.: 29507.
2004: January 19; 2004: June 30.
Present: McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish JJ.
on appeal from the court of appeal for quebec
Municipal law — Procedural fairness — Refusal by municipality to amend zoning by‑law to allow religious group to build place of worship on land it purchased — Whether municipality required to provide reasons for its decision.
Constitutional law — Charter of Rights — Freedom of religion — Whether municipality’s decision not to amend its zoning by‑law to allow religious group to build place of worship on land it purchased infringes freedom of religion — Canadian Charter of Rights and Freedoms, s. 2 (a).
The Jehovah’s Witnesses were looking for a suitable parcel of land on which to establish a place of worship in the respondent municipality. The zoning by‑law allowed places of worship to be built in a regional community use zone. As they felt that no land was available in this zone, the Jehovah’s Witnesses made a conditional offer to purchase a lot located in a residential zone and applied for an amendment to the zoning by‑law. The amendment was refused on the ground that this would have resulted in an increase in the tax burden for ratepayers. The Jehovah’s Witnesses purchased another lot in a commercial use zone and applied twice for a zoning change, but the municipality categorically refused to grant their applications, giving no reasons for its refusal. The Jehovah’s Witnesses instituted a proceeding for mandamus, alleging that the municipality’s refusal to amend its zoning by‑law violated their freedom of religion under s. 2 (a) of the Canadian Charter of Rights and Freedoms . They also challenged the constitutionality of the provisions of the Act respecting land use planning and development relating to the process for approving amendments to zoning by‑laws by way of referendum, contending that such a public consultation would violate their freedom of religion. The trial judge dismissed the application after finding that lots were still available in the only zone in which places of worship could be built. The Court of Appeal set aside this finding of fact, but the majority dismissed the appeal on the ground that the municipality was not responsible for the unavailability of land and was under no positive obligation to preserve freedom of religion.
Held (Major, Bastarache, LeBel and Deschamps JJ. dissenting): The appeal should be allowed.
Per McLachlin C.J. and Iacobucci, Binnie, Arbour and Fish JJ.: In weighing the merits of the Congregation’s rezoning requests, the Municipality was discharging a duty delegated to it by the Legislature. The Municipality was bound to exercise the powers conferred upon it fairly, in good faith and with a view to the public interest. The Municipality did not fulfill its duty of procedural fairness in responding to the second and third rezoning applications brought by the Congregation because the Municipality gave no reasons for its denial.
When making an administrative decision affecting individual rights, privileges or interests, a public body like a municipality is bound by a duty of procedural fairness whose content varies according to five factors. In this case, a review of these factors indicates that the Municipality’s duty of procedural fairness to the Congregation was heightened by the aggravated potential for abuse of discretionary statutory authority, the absence of an appeal provision, the expectations established by the Municipality’s own conduct in responding to the Congregation’s first rezoning application, and the importance of the decision to the Congregation, impacting as it did on the right of the Congregation to practice the religion of its choice. Little deference is due to the Municipality’s decisions concerning the second and third applications for rezoning because there is no record to indicate that the Municipality has actually engaged its expertise in evaluating the applications. These factors suggest that the Municipality was required to carefully evaluate the Congregation’s applications for a zoning variance and to give reasons for refusing them.
In refusing to justify its decisions, the Municipality breached its duty of procedural fairness. It acted in a manner that was arbitrary and straddled the boundary separating good from bad faith. The matter should be remitted to the Municipality for reconsideration of the Congregation’s rezoning application.
Per Bastarache, LeBel and Deschamps JJ. (dissenting): In the absence of a palpable and overriding error, the Court of Appeal could not review the trial judge’s finding of fact regarding the availability of a lot. This finding, which was based on an assessment of witnesses’ credibility, should be restored and it justifies dismissing the Jehovah’s Witnesses’ application, since it precludes a conclusion that their freedom of religion was infringed.
Neither the purpose nor the effect of the zoning by‑law has been to infringe the freedom of religion of the Jehovah’s Witnesses. First, the zoning by‑law cannot be considered prohibitive since it does not prohibit the “place of worship” use everywhere within the municipality’s boundaries. Second, freedom of religion is a fundamental right that imposes on the state and public authorities, in relation to all religions and citizens, a duty of religious neutrality. For that reason, the municipality is required to structure its by‑laws in such a way as to avoid placing unnecessary obstacles in the way of the exercise of religious freedoms, although it does not have to provide the Jehovah’s Witnesses with access to a lot that corresponds better to their selection criteria. Furthermore, the rights protected by s. 2 (a) of the Charter are not absolute. First, freedom of religion is limited by the rights and freedoms of others. The diversity of opinions and convictions requires mutual tolerance and respect for others. Second, although the very nature of the zoning by‑law means that the Jehovah’s Witnesses do not have absolute freedom to choose the location of their place of worship, this limit is necessary to protect safety and order, and ensure proper land use, in the municipality and does not constitute a violation of freedom of religion. Finally, churches and their members are not exempted from making any effort, or even sacrifice, inter alia in the exercise of their freedom of worship. Since at least one lot remains available in the regional community use zone, the Jehovah’s Witnesses must comply with the municipality’s zoning by‑law and build their place of worship in the zone where this use is authorized.
If no land were available in the regional community use zone, this would constitute an infringement of freedom of religion under s. 2 (a) of the Charter , because the construction of a place of worship, which is an integral part of this freedom, would then be impossible within the boundaries of the municipality. This infringement would result not from the existence of the zoning by‑law, but from the refusal to adapt it to evolving community needs. Even though, as a general rule, the Charter does not require the state to take positive steps in support of the exercise of the fundamental freedoms provided for in s. 2 (a), and even though the state must refrain from implementing measures that could favour one religion over another, this would be an exceptional situation in which freedom of religion could have no real meaning unless the public authorities took positive action. The municipality would therefore have to amend the by‑law.
If there had been a violation of the Charter , the only possible remedy that would have been appropriate was an order to the municipality to review its zoning by‑law so as to make land available to the appellants on which they could build their place of worship. It would not have been appropriate to suspend the operation of the Act respecting land use planning and development and its process for approval by way of referendum, as it cannot be assumed that this democratic process, which is consistent with the nature of municipal government in Canada, in any way infringes the freedom of religion guaranteed by s. 2 (a) of the Charter .
Concerning the administrative law issue, a more precise and rigorous justification for the municipality’s repeated refusals to amend its zoning by‑law would not only have given the Jehovah’s Witnesses a better understanding of the municipality’s decision, it also would have given its decision‑making process the required transparency and the appearance of procedural fairness.
Per Major J. (dissenting): There is agreement with the result in the judgment of LeBel J., but reasons restricted to his conclusions on the findings of fact of the trial judge and the absence of any infringement to freedom of religion.
Cases Cited
By McLachlin C.J.
Referred to: Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; Toronto (City) v. Trustees of the Roman Catholic Separate Schools of Toronto, [1926] A.C. 81; Kuchma v. Rural Municipality of Tache, [1945] S.C.R. 234; Norfolk v. Roberts (1914), 50 S.C.R. 283; In re Glover and Sam Kee (1914), 20 B.C.R. 219; Re Howard and City of Toronto, [1928] 1 D.L.R. 952; Roncarelli v. Duplessis, [1959] S.C.R. 121; Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105; Bendahmane v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16; Qi v. Canada (Minister of Citizenship and Immigration) (1995), 33 Imm. L.R. (2d) 57; Mercier‑Néron v. Canada (Minister of National Health and Welfare) (1995), 98 F.T.R. 36; Prud’homme v. Prud’homme, [2002] 4 S.C.R. 663, 2002 SCC 85; Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595, 2002 SCC 18; Young v. Young, [1993] 4 S.C.R. 3.
By LeBel J. (dissenting)
Saint‑Michel‑Archange (Municipalité de) v. 2419‑6388 Québec Inc., [1992] R.J.Q. 875; Orford (Canton) v. Fonds de placement Hamel inc., [1995] Q.J. No. 2260 (QL); Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31; Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94; Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; Haig v. Canada, [1993] 2 S.C.R. 995; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
Statutes and Regulations Cited
Act respecting administrative justice, R.S.Q., c. J‑3, ss. 2, 3, 5, 8.
Act respecting land use planning and development, R.S.Q., c. A‑19.1, ss. 113(3), 123 to 133.
Canadian Charter of Rights and Freedoms, s. 2 .
Charter of human rights and freedoms, R.S.Q., c. C‑12, s. 3.
Cities and Towns Act, R.S.Q., c. C‑19, s. 410.
Constitution Act, 1867, s. 93 .
Supreme Court Act, R.S.C. 1985, c. S‑26, s. 47 .
Zoning By‑Law No. 362 for village de Lafontaine, adopted April 2, 1991 (came into force on May 18, 1991), ss. 2.2.1, 2.2.3.2, 2.2.3.3, 2.2.5.3.
Authors Cited
L’Heureux, Jacques. Droit municipal québécois, t. II. Montréal: Wilson & Lafleur/SOREJ, 1984.
Ogilvie, M. H. Religious Institutions and the Law in Canada, 2nd ed. Toronto: Irwin Law, 2003.
Woehrling, José. “L’obligation d’accommodement raisonnable et l’adaptation de la société à la diversité religieuse” (1998), 43 McGill L.J. 325.
APPEAL from a judgment of the Quebec Court of Appeal, [2002] R.J.Q. 3015, [2002] Q.J. No. 4728 (QL), affirming a judgment of the Superior Court, J.E. 99‑333. Appeal allowed, Major, Bastarache, LeBel and Deschamps JJ. dissenting.
André Carbonneau and David M. Gnam, for the appellants.
Michel Lalande and Jean‑Pierre St‑Amour, for the respondents the Municipality of the village of Lafontaine and Harold Larente.
Mario Normandin, for the respondent the Attorney General of Quebec.
Gerald D. Chipeur and Ivan Bernardo, for the interveners the Seventh‑Day Adventist Church in Canada and the Evangelical Fellowship of Canada.
Andrew K. Lokan and Megan Shortreed, for the intervener the Canadian Civil Liberties Association.
The judgment of McLachlin C.J. and Iacobucci, Binnie, Arbour and Fish JJ. was delivered by
The Chief Justice —
I. Summary
1 The issue in this case is whether the municipality of the village of Lafontaine (the “Municipality”) lawfully denied an application for rezoning to permit the Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine (the “Congregation”) to build a place of worship. Unlike my colleague Justice LeBel, I conclude the Municipality did not. Although the Municipality’s first denial of permission to rezone complied with the law, the second and third did not, in my view, because the Municipality gave no reasons for its denial, instead taking the position that it enjoyed absolute discretion to refuse the zoning variance with no explanation to the Congregation.
2 In weighing the merits of the Congregation’s rezoning requests, the Municipality was discharging a duty delegated to it by the Legislature. It was bound to exercise the powers conferred upon it fairly, in good faith and with a view to the public interest. Here, on the facts as found by the trial judge, the Municipality failed to do so. Accordingly, I would remit the matter to the Municipality for reconsideration.
II. The Duty on the Municipality
3 A public body like a municipality is bound by a duty of procedural fairness when it makes an administrative decision affecting individual rights, privileges or interests: Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311. The decision to deny the application for rezoning affected the Congregation’s rights and interests. There can thus be no question that the Municipality owed the Congregation a duty of fairness.
4 At issue in this case is the content of this duty. More particularly and on the facts as found, does the duty require the Municipality to give the Congregation reasons for refusing the rezoning application? Or does it clothe the Municipality with absolute discretion to refuse the Congregation’s application?
5 The content of the duty of fairness on a public body varies according to five factors: (1) the nature of the decision and the decision-making process employed by the public organ; (2) the nature of the statutory scheme and the precise statutory provisions pursuant to which the public body operates; (3) the importance of the decision to the individuals affected; (4) the legitimate expectations of the party challenging the decision; and (5) the nature of the deference accorded to the body: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. In my view and having regard to the facts and legislation in this appeal, these considerations require the Municipality to articulate reasons for refusing the Congregation’s second and third rezoning applications.
6 The first factor — the nature of the decision and the process by which it is reached — merges administrative and political concerns. The decision to propose a draft by-law rezoning municipal territory is made by an elected council accountable to its constituents in a manner analogous to that in which Parliament and the provincial legislatures are accountable to their own: Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, at para. 51. This decision is moreover tempered by the municipality’s charge to act in the public interest: Toronto (City) v. Trustees of the Roman Catholic Separate Schools of Toronto, [1926] A.C. 81 (P.C.), at p. 86. What is in the public interest is a matter of discretion to be determined solely by the municipality. Provided the municipality acts honestly and within the limits of its statutory powers, the reviewing court is not to interfere with the municipal decision unless “good and sufficient reason be established”: Kuchma v. Rural Municipality of Tache, [1945] S.C.R. 234, at p. 243 (per Estey J.); see also Norfolk v. Roberts (1914), 50 S.C.R. 283, at p. 293; In re Glover and Sam Kee (1914), 20 B.C.R. 219 (S.C.), at pp. 221-22; Re Howard and City of Toronto, [1928] 1 D.L.R. 952 (Ont. S.C., App. Div.), at p. 965.
7 However, the elected councillors cannot deny a rezoning application in an arbitrary manner. Where the municipal council acts in an arbitrary fashion in the discharge of its public function, “good and sufficient reason” exists to warrant intervention from the reviewing court in order to remedy the proven misconduct. The need for judicial oversight of arbitrary municipal decision making is only heightened by the aggravated potential for abuse of discretionary statutory authority. As Rand J. has made clear in Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 140, no discretion casts a net wide enough to shield an arbitrary or capricious municipal decision from judicial review:
In public regulation of this sort there is no such thing as absolute and untrammelled “discretion”, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute.
8 The second factor is the statutory scheme and its provisions, in this case the Act respecting land use planning and development, R.S.Q., c. A-19.1, which grants the Municipality authority to consider a rezoning application. Even so, the absence of an appeal provision demands greater municipal solicitude for fairness. Enhanced procedural protections “will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted”: Baker, supra, at para. 24, per L’Heureux-Dubé J.
9 The third factor requires us to consider the importance of the decision to the Congregation. The stringency of procedural protection is directly proportional to the importance of the decision to the lives of those affected and the nature of its impact on them: Baker, supra, at para. 25; see also Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105, at p. 1113. Here, it becomes important that the municipal decision affects the Congregation’s practice of its religion. The right to freely adhere to a faith and to congregate with others in doing so is of primary importance, as attested to by its protection in the Canadian Charter of Rights and Freedoms and the Quebec Charter of human rights and freedoms, R.S.Q., c. C-12.
10 The fourth factor — the legitimate expectations of the Congregation — also militates in favour of heightened procedural protection. Where prior conduct creates for the claimant a legitimate expectation that certain procedures will be followed as a matter of course, fairness may require consistency: Baker, supra, at para. 26; see also Bendahmane v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16 (C.A.); Qi v. Canada (Minister of Citizenship and Immigration) (1995), 33 Imm. L.R. (2d) 57 (F.C.T.D.); Mercier-Néron v. Canada (Minister of National Health and Welfare) (1995), 98 F.T.R. 36. Here, the Municipality followed an involved process in responding to the Congregation’s first rezoning application, in so doing giving rise to the Congregation’s legitimate expectation that future applications would be thoroughly vetted and carefully considered.
11 The fifth factor — the nature of the deference due to the decision maker — calls upon the reviewing court to acknowledge that the public body may be better positioned than the judiciary in certain matters to render a decision, and to examine whether the decision in question falls within this realm. Municipal decisions on rezoning fall within the sphere in which municipalities have expertise beyond the capacity of the judiciary, thus warranting deference from reviewing courts. However, this factor may not carry much weight where, as here on the second and third applications for rezoning, there is no record to indicate that the Municipality has actually engaged its expertise in evaluating the applications.
12 The five Baker factors suggest that the Municipality’s duty of procedural fairness to the Congregation required the Municipality to carefully evaluate the applications for a zoning variance and to give reasons for refusing them. This conclusion is consistent with the Court’s recent decision in Prud’homme v. Prud’homme, [2002] 4 S.C.R. 663, 2002 SCC 85, at para. 23, holding that municipal councillors must always explain and be prepared to defend their decisions. It is also consistent with Baker, where it was held, at para. 43 dealing with a ministerial decision, that if an organ of the state has a duty to give reasons and refuses to articulate reasons for exercising its discretionary authority in a particular fashion, the public body may be deemed to have acted arbitrarily and violated its duty of procedural fairness.
13 Giving reasons for refusing to rezone in a case such as this serves the values of fair and transparent decision making, reduces the chance of arbitrary or capricious decisions, and cultivates the confidence of citizens in public officials. Sustained by both law and policy, I conclude that the Municipality was bound to give reasons for refusing the Congregation’s second and third applications for rezoning. This duty applied to the first application, and was complied with. If anything, the duty was stronger on the Congregation’s second and third applications, where legitimate expectations of fair process had been established by the Municipality itself.
III. Applying the Duty of Fairness to the Facts
14 Before considering the rezoning applications, it is necessary to deal with a preliminary question: does the trial judge’s finding that Mrs. Jolicoeur was willing to sell a P-3 property to the Congregation resolve the matter and make it unnecessary to consider the Municipality’s treatment of the Congregation’s application for rezoning, as LeBel J. concludes?
15 Like LeBel J., I accept the finding of fact that land was available in Zone P-3. However, this does not resolve the issue, in my view, because the Municipality’s duty of procedural fairness to the Congregation is not contingent upon the interactions of the Congregation with third parties, namely Mrs. Jolicoeur. The Municipality’s duty exists independent of the Congregation’s own conduct.
16 I therefore find it necessary to consider whether the Municipality fulfilled its duty of procedural fairness in responding to the rezoning applications brought by the Congregation. In my view, the answer is no.
17 The Congregation requested a zoning variance from the Municipality on three separate occasions. On each occasion, the Municipality refused the request. The process by which the Municipality refused the first request withstands judicial scrutiny. But the process followed to respond to the second and third requests does not.
18 On March 4, 1992, after having concluded no land was available in P-3, the Congregation entered into a purchase agreement for a parcel of land located at the intersection of 112th Avenue and Maurice Boulevard, conditional upon obtaining rezoning approval. The parcel was located in a residential zone, not a P-3 community zone where the construction of churches was permitted. However, another P-3-zoned structure was already located in the area.
19 On May 12, 1992, the Municipality referred the request to its Comité consultatif d’urbanisme for a recommendation. Realizing that places of worship normally enjoy exemption from property taxes, the Comité commissioned a study from Marcel Bélanger, then assistant secretary-treasurer, on the financial impact upon city taxpayers of granting the Congregation’s request. Bélanger reported back to the Comité on June 10, concluding that granting the Congregation’s zoning variance would result in increased property taxes for neighbouring residents. On June 23, the Comité recommended that the Municipality deny the Congregation’s request for a zoning variance. On July 6 at a public meeting, the Municipality announced its final decision to deny the request, supported by detailed reasons.
20 At the urging of the Mayor, the Congregation met with the Municipality’s building inspector the next day, July 7. The building inspector indicated on a map the location of P-3 zones in which the Congregation could purchase land to build its place of worship. The building inspector added that if no land were available for purchase in Zone P-3, the Congregation would have to reapply for a zoning variance. To this point, the Municipality’s conduct cannot be faulted.
21 Following this advice, the Congregation renewed its search for available land in Zone P-3. Again its search turned up no available land in P-3 zones and the Congregation took its search to other zones. It found a suitable lot in a commercial zone at 2373 Labelle Boulevard — only 400 metres from another place of worship — and entered into a conditional purchase agreement. Still following the building inspector’s earlier advice, the Congregation filed a second request for a zoning variance.
22 The Congregation’s accompanying letter, dated February 1, 1993, detailed its four-year-long effort to build a place of worship in the Municipality and expressed its inability to find any available land in Zone P-3. It requested a zoning variance for the commercial-zoned property it now proposed to acquire. The Congregation asked for an audience with the Municipality in order to personally present its construction plans.
23 Three days later, on February 4, the Municipality sent the Congregation a letter summarily denying its request. It gave no reasons for this decision. The Municipality did not engage in an evaluative process like the one it undertook in response to the Congregation’s first request for a zoning variance, nor indeed any evaluative process at all. The Municipality did not refer the matter to its Comité. It did not study the financial impact of granting the zoning variance. And it did not grant the Congregation the courtesy of meeting with its representatives to discuss the Congregation’s construction plans, which by then had been derailed for four years. The Municipality contented itself with advising that lots in P-3 were available.
24 This advice was no substitute for a proper evaluation of the rezoning application and accompanying reasons justifying the refusal. The Municipality knew that the Congregation believed on the basis of two searches that no P-3 lots were available. Yet, it offered only the general observation that lots were available without offering any direction. In fact, as the trial judge found, land was available in P-3. But this is not the issue. The issue is whether, in these circumstances, the Municipality’s curt dismissal of the Congregation with the advice that land was available in P-3 constitutes a sufficient justification of its refusal to grant the second rezoning application to comply with the duty of fairness it owes the Congregation — a duty heightened by the Congregation’s legitimate expectations. I conclude that it does not.
25 Had this second application been a mere request for reconsideration, one might have understood the absence of evaluation and reasons. But this was not so. The Congregation’s second request concerned a different parcel of land, located in a commercial zone rather than a residential zone, and situated near another place of worship. The findings of the Bélanger study on tax impact of granting a zoning variance and the accompanying analyses of the first application were inapplicable to these new and different circumstances. A new evaluation was required, together with an explanation. Neither was offered.
26 Having been told land was available in P-3 but not informed as to where, the Congregation yet again renewed its search for land in P-3. It canvassed landowners in this zone, but again concluded that no suitable properties were for sale. Armed with written confirmation from P-3 property owners attesting to the unavailability of land in Zone P-3, the Congregation presented its third request to the Municipality for a zoning variance on May 31, 1993. The request related to the same property that had been the subject of the second request. In a series of letters to the Municipality, the Congregation presented evidence of its fruitless search to identify any available land in Zone P-3.
27 The Municipality responded by letter, dated August 24, 1993. Again, it refused the application for rezoning. Again, it offered no reasons. This time it did not even tell the Congregation that land was available in Zone P-3. The Municipality contented itself with asserting — erroneously — that since the Legislature had conferred discretion upon it, the Municipality was not required to offer any justification for refusing the Congregation’s rezoning application:
[translation] You have made a number of applications to amend the zoning by-law. The Legislature has given the municipal council the responsibility for exercising this power, which is discretionary. Upon careful consideration, the municipality of Lafontaine has decided not to take action in respect of your applications. The municipal council of Lafontaine is not required to provide you with a justification and we therefore have no intention of giving reasons for the council’s decision. [Emphasis added.]
28 Where, one asks, is the recognition that the Municipality must exercise its legislatively conferred discretion in the public interest? Where is the recognition that the Municipality owed a duty of fairness to the Congregation? The Congregation in making its second and third applications was acting in good faith on the advice it had received from the municipal inspector following the rejection of its first application. The Congregation offered evidence of good faith searches for land in P-3 to no avail — evidence the Municipality did not bother to comment on, much less rebut.
29 The Municipality’s attitude was clear. The Congregation was welcome to find land in P-3 on its own. If it was unable to do so, the Municipality was prepared to neither accept an application for rezoning nor justify its refusal. The letter effectively foreclosed any possibility that the Municipality would assist the Congregation in its quest for land upon which to build its place of worship. Not surprisingly, the Congregation concluded further applications would be fruitless and commenced this litigation.
30 In refusing to justify its decision to deny the second and third applications for zoning variances, the Municipality breached the duty of procedural fairness it owed to the Congregation — a duty heightened by the expectations established by the Municipality’s own conduct and the importance of the decision to the Congregation, impacting as it did on the right of the Congregation to practise the religion of its choice. The Municipality acted in a manner that was arbitrary and straddled the boundary separating good from bad faith. It follows that the second and third refusals do not comply with the law and must be set aside.
IV. Remedy
31 I would allow the appeal, set aside the second and third rezoning refusals, and remit the matter to the Municipality for reconsideration of the Congregation’s rezoning application.
32 The Congregation argues that this remedy is inadequate because it fears that the Municipality will once again refuse its application, this time with proper reasons. Accordingly, it asks this Court to order the Municipality to grant its rezoning application. But such an order presupposes that the Congregation is entitled to a favourable decision by the Municipality in the proper exercise of its discretion. Having already discussed the broad scope of the municipal power to pursue its urban planning program with fairness, in good faith and with a view to the public interest, I take no position on this matter.
33 It may be that in appropriate cases, high-handed or outrageous conduct as that of the Municipality in this appeal might support an order for solicitor-and-client costs or punitive damages: Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595, 2002 SCC 18; Young v. Young, [1993] 4 S.C.R. 3. Although the Congregation has made no such request to this Court, we nevertheless retain the right to issue an order for solicitor-and-client costs where circumstances so warrant: Supreme Court Act, R.S.C. 1985, c. S-26, s. 47 . However, in light of our inability to conclude on the facts whether the Municipality acted in bad faith in denying the Congregation’s second and third rezoning applications, I would decline to award solicitor-and-client costs in this appeal.
34 It is also unnecessary to consider the constitutionality of the impugned provisions of the Act respecting land use planning and development and to answer the constitutional questions.
V. Conclusion
35 I would allow the appeal with costs to the Congregation and remit the Congregation’s rezoning application for the property located at 2373 Labelle Boulevard to the Municipality, to be considered in accordance with these reasons and in observance of the lawful exercise of discretionary authority.
The following are the reasons delivered by
36 Major J. (dissenting) — I agree with the result in the judgment of LeBel J. but restrict my reasons to his conclusions on the findings of fact of the trial judge and the absence of any infringement to freedom of religion.
English version of the reasons of Bastarache, LeBel and Deschamps JJ. delivered by
LeBel J. (dissenting) —
I. Introduction
37 This appeal concerns a municipal zoning problem relating to the construction of a place of worship for a religious group. The dispute arose out of the refusal of the municipality of the village of Lafontaine (the “municipality”) to amend its zoning by‑law to allow the appellants to build a place of worship, a Kingdom Hall, on land they bought in a zone where the construction of such facilities is not permitted. More specifically, it is necessary to determine whether the municipality’s refusal to amend its zoning by‑law infringes the freedom of religion guaranteed by s. 2 (a) of the Canadian Charter of Rights and Freedoms (the “Charter ”). If so, it will be necessary to find an appropriate remedy, which will entail a review of the constitutionality of provisions of the Act respecting land use planning and development, R.S.Q., c. A‑19.1 (“ALUPD”), relating to the referendum process for approving amendments to zoning by‑laws. The case also raises a preliminary issue, that is, whether the Court of Appeal was correct in varying the trial judge’s finding of fact that lots were available in the zone where the establishment of places of worship is permitted by the municipal by‑law. Finally, there remains a question of administrative law relating to the provision of reasons for the municipality’s decision not to amend its zoning by‑law that should be addressed.
38 The courts below dismissed the appellants’ case. I conclude, for reasons that are different from those of the Quebec Court of Appeal and that I will now set out, that an infringement of freedom of religion has not been established and that the appeal should be dismissed.
II. Origins of the Case
39 The respondent municipality, the village of Lafontaine, is located near St‑Jérôme, Quebec. In 2002, the municipality was amalgamated with the city of St‑Jérôme. The appellants have been looking for a suitable parcel of land in this municipality on which to establish a place of worship, a “Kingdom Hall”, since 1989 and have been seeking permission from the municipality to build such a facility since 1992.
40 The municipality’s zoning by‑law No. 362, as it read in 1992, allowed places of worship to be built in a regional community use zone designated as Zone P‑3 (ss. 2.2.1 and 2.2.5.3). As they felt that no land was available in this zone for the construction of
their Kingdom Hall, the appellants made an initial offer, conditional on the amendment of the municipality’s zoning by‑law, to purchase a lot located in a residential zone. On receiving the appellants’ application, the municipality refused to amend its zoning by‑law on the ground that this would have resulted in an increase in the tax burden for ratepayers, since places of worship are exempt from paying tax. Following this refusal, the appellants made a second conditional offer on November 22, 1992, this time to purchase a lot in Zone C‑3, a commercial use zone. They then applied to the municipality a number of times for a zoning change that would permit them to build their place of worship on this lot. The municipality categorically refused to grant their application. There were then some heated exchanges with the municipality’s lawyers, who justified the refusal to amend the zoning by‑law on the basis that lots were available in Zone P‑3. On August 5, 1993, after the municipality refused to amend its zoning by‑law, the appellants bought the lot in Zone C‑3.
41 To obtain the necessary permits to build their place of worship on this lot, the appellants instituted a proceeding for mandamus. They based their proceeding on grounds based primarily on constitutional law, alleging that the municipality’s refusal to amend its zoning by‑law violated their freedom of religion under s. 2 (a) of the Charter and under the Charter of human rights and freedoms, R.S.Q., c. C‑12 (the “Quebec Charter”). They also asked that the provisions of the ALUPD relating to the process for approving amendments to zoning by‑laws by way of referendum be declared unconstitutional, because such a public consultation, in their view, would violate their freedom of religion. This proceeding gave rise to the case now before our Court.
III. Judicial History
A. Quebec Superior Court (J.E. 99-333)
42 Dubois J. of the Quebec Superior Court began by finding that, pursuant to the municipality’s zoning by‑law, places of worship could be built only in Zone P‑3. To build such a facility in another zone, in thi