Ipsofactoj.com: International Cases  Part 6 Case 11 [SCC]
SUPREME COURT OF CANADA
témoins de Jéhovah de
- vs -
the village of Lafontaine
30 JUNE 2004
(with whom Iacobucci J, Binnie J, Arbour J and Fish J joined)
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.
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
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,  2 S.C.R. 643; Attorney General of Canada v Inuit Tapirisat of Canada,  2 S.C.R. 735; Martineau v Matsqui Institution Disciplinary Board,  1 S.C.R. 602; Nicholson v Haldimand-Norfolk Regional Board of Commissioners of Police,  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.
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?
The content of the duty of fairness on a public body varies according to five factors:
the nature of the decision and the decision-making process employed by the public organ;
the nature of the statutory scheme and the precise statutory provisions pursuant to which the public body operates;
the importance of the decision to the individuals affected;
the legitimate expectations of the party challenging the decision; and
the nature of the deference accorded to the body:
Baker v Canada (Minister of Citizenship and Immigration),  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.
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),  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,  A.C. 81(H.L.), 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,  S.C.R. 234, at p. 243 (per Estey J.); see also Norfolk v Roberts (1915), 50 S.C.R. 283, at p. 293; In re Glover and Sam Kee (1914), 20 B.C.R. 219, at pp. 221-22 (S.C.); Re Howard and City of Toronto,  1 D.L.R. 952, at p. 965 (Ont. S.C. App. Div.).
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,  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.
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.
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,  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.
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),  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 (Ministre de la Santé nationale et du Bien-être social) (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.
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.
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,  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, supra, 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.
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
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?
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
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.
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.
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 neither prepared to 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.
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.
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.
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.
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.,  1 S.C.R. 595, 2002 SCC 18; Young v Young,  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.
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.
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.
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.
(with whom Bastarache J and Deschamps J joined, dissenting)
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 of 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.
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
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.
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 220.127.116.11). 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.
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 Act respecting land use planning and development 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 (December 14, 1998)
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 this case Zone C-3, the by-law would have to be amended.
After conducting a detailed analysis of the evidence before him, the trial judge held that lots on which the appellants could build their place of worship were still available in Zone P-3 and that some of them were still up for sale. According to Dubois J., 709,873 square feet of land in Zone P-3 had yet to be developed. At least two lots were still on the market in that zone. In his view, one lot, which he called the "island lot", was available and would be a suitable site for the appellants' place of worship, since it was even larger than the lot they had purchased. According to Dubois J., another lot, one belonging to Francine Jolicoeur that was located behind the Pavillon Ste-Marie (P-3-418), was also available. He found Ms. Jolicoeur's testimony to the effect that she was prepared to sell this lot to be credible. In his opinion, the appellants should have made Ms. Jolicoeur a formal offer to purchase to determine whether the lot was indeed available.
Dubois J. also refused to characterize the zoning by-law as prohibitive, since it allowed the construction of places of worship in Zone P-3. He concluded by stating that, since the purpose of the by-law was to organize the municipality's territory while ensuring that citizens' interests were taken into account and that order was maintained in the municipality, the by-law did not infringe freedom of religion. The Superior Court accordingly dismissed the appellants' application for mandamus.
B. Court of Appeal,  R.J.Q. 3015
The Quebec Court of Appeal was divided as to how to dispose of the appeal. Gendreau and Pelletier JJ.A., who formed the majority of the Court, dismissed the appeal, while Robert C.J.Q., who dissented, would have allowed it.
The majority agreed with the conclusion of Robert C.J.Q. that the trial judge had made an unreasonable error in finding that lots on which the appellants could build their place of worship were still available in Zone P-3. Thus, all the judges of the Court of Appeal agreed that no land was available in that zone on which to build a Kingdom Hall.
However, in the opinion of the majority, the municipality was not responsible for this unavailability. Since the zoning by-law was not prohibitive, as it did not make it impossible to locate places of worship within the boundaries of the municipality, it could not be regarded as the reason why no land was available in Zone P-3. Rather, the source of the problem was the refusal of landowners in that area to sell lots to the appellants. The majority added that the municipality was under no positive obligation to preserve freedom of religion under s. 2(a) of the Charter. This led them to conclude that the municipality was not under an obligation to ensure that every religious community could have a place of worship located within its boundaries. The majority therefore dismissed the appeal.
Robert C.J.Q., dissenting, would have allowed the appeal. In his view, the trial judge had correctly concluded that, pursuant to the zoning by-law, places of worship could be built only in Zone P-3 and that the by-law would have to be amended to allow the construction of such facilities in other zones, such as Zone C-3.
However, the Chief Justice felt that the trial judge had made a palpable and overriding error in assessing the facts with respect to the availability of lots in Zone P-3. In his view, the Superior Court made an initial error of this nature in assessing the evidence relating to the availability of the "island lot". The island was in fact too small for the appellants' construction plans, because a strip of land varying between 10 and 15 metres in width had been set aside to protect the river banks. Moreover, the island's access road would be insufficient for a traffic volume of 40 to 50 vehicles. At any rate, the appellants had been told that the land was not for sale. Robert C.J.Q. was also of the opinion that the burden placed on the appellants as regards their dealings with Ms. Jolicoeur to purchase her land was excessive. In his view, the evidence did not support a finding that she was in fact prepared to sell the portion of her land located behind the Pavillon Ste-Marie. He therefore was of the view that no land was available in Zone P-3 for the construction of the appellants' place of worship. As I have already mentioned, the majority accepted this finding of fact.
Unlike the majority, Robert C.J.Q. held that the application of the zoning by-law infringed the freedom of religion guaranteed by s. 2(a) of the Charter, as it made it impossible for the appellants to build a place of worship. The municipality was therefore under a duty to make a reasonable effort to accommodate the appellants. It should have amended its zoning by-law at that time to allow the place of worship to be built in another zone within its boundaries.
In the dissenting judge's opinion, this infringement of the appellants' right to freedom of religion should be remedied by granting the appellants a constitutional exemption from the zoning by-law. This form of remedy would make it unnecessary to amend the zoning by-law. An amendment would require the application of the Act respecting land use planning and development, which would entail the risks inherent in its process for approval by way of referendum. Robert C.J.Q. therefore would have ordered the municipality to issue a building permit to the appellants for the construction of their place of worship on the lot they had acquired in Zone C-3.
IV. LEAVE TO APPEAL TO SUPREME COURT AND CONSTITUTIONAL QUESTIONS STATED BY COURT
Leave to appeal to this Court was granted,  1 S.C.R. viii, on April 10, 2003. The appellants then asked the Court to state the constitutional questions raised in this case in relation to the process for approving amendments to by-laws by way of referendum as provided for in ss. 123 to 130 and 132 of the Act respecting land use planning and development. On June 5, 2003, the following questions were stated:
Do ss. 123 to 130 and 132 of the Act respecting land use planning and development, R.S.Q. c. A-19.1, infringe the right to freedom of religion guaranteed by s. 2(a) of the Canadian Charter of Rights and Freedoms?
If so, is the infringement a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?
Do ss. 123 to 130 and 132 of the Act respecting land use planning and development, R.S.Q. c. A-19.1, infringe the right to equality without discrimination guaranteed by s. 15(1) of the Canadian Charter of Rights and Freedoms?
If so, is the infringement a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?
V. CONSTITUTIONAL AND LEGISLATIVE FRAMEWORK
The constitutional and legislative provisions applicable to this case can be found in the appendix to these reasons.
The dispute now before this Court raises four main issues. First, it must be determined whether the Court of Appeal erred in varying the trial judge's findings of fact regarding the availability of lots in Zone P-3. The next question is whether the wording of the municipality's zoning by-law and the municipality's refusal to amend it infringe the freedom of religion guaranteed by s. 2(a) of the Charter. It would also have been possible to consider whether the right to freedom of religion guaranteed by s. 3 of the Quebec Charter had been violated. Although the appellants alleged such a violation in their legal proceedings, the debate between the parties centred on the interpretation and application of the Canadian Charter, so the analysis will be limited to the freedom of religion guaranteed by s. 2(a) of the Canadian Charter. If it is found that this fundamental freedom has been infringed, appropriate remedies will have to be selected. In this analysis, the constitutional questions stated by this Court will have to be answered. Finally, although the issue was not directly argued by the appellants, I believe it is important to comment, in an administrative law context, on whether the municipality is under an obligation to provide the appellants with reasons for its decisions not to amend its zoning by-law and, if so, to what extent.
A. Interpretation of the Zoning By-law
Before I begin my analysis of the four issues, I should mention that I cannot accept the appellants' submission that a liberal construction of the zoning by-law would lead to the conclusion that it authorizes the establishment of places of worship in Zone C-3. This submission is based on the wording of s. 18.104.22.168 of the zoning by-law, which sets out the uses authorized for Zone C-3, namely [Translation] "uses in the nature of sales and service", including, "but . not limited to, the establishments listed below and establishments of a similar nature"; included in the list are "Commercial 2 (local)" uses, which, according to s. 22.214.171.124, include "social clubs". The appellants argue that, since the list of authorized uses is not exhaustive, and since places of worship are similar in nature to social clubs, it follows that the establishment of places of worship is permitted in Zone C-3.
Under s. 113(3) ALUPD, municipalities have the authority to prohibit particular uses in specific zones within their boundaries. In principle, a municipality may implicitly prohibit certain uses by listing the authorized uses for a zone (Saint-Michel-Archange (Municipalité de) v 2419-6388 Québec Inc.,  R.J.Q. 875 (C.A.), at p. 883). Thus, a municipality that lists the permitted uses for a zone automatically excludes any use not on the list (Orford (Canton) v Fonds de placement Hamel inc.,  A.Q. No. 2260 (QL) (C.S.)). The appellants contend that this principle does not apply to s. 126.96.36.199 of the zoning by-law, because the municipality has clearly stated that the list of authorized uses is not exhaustive. As pointed out by the dissenting member of the Court of Appeal, this contention cannot be accepted in relation to this by-law because of the ejusdem generis rule of interpretation, according to which a generic term that completes an enumeration must be interpreted in light of the genus of the other terms. In the case at bar, the provisions relating to Zone C-3 concern commercial uses. In this context, a "social club" cannot therefore be interpreted as being similar in nature to a place of worship.
In my opinion, therefore, the municipal by-law permits the establishment of places of worship only in Zone P-3. Having said this, I will now turn to the analysis of the issues.
B. Did the Court of Appeal Err in Varying the Trial Judge's Findings of Fact?
The Court of Appeal unanimously concluded that the trial judge had made an overriding error in assessing the evidence relating to the availability of certain lots in Zone P-3. Contrary to the trial judge's finding, the Court of Appeal acknowledged that no lots were available in this zone for the appellants to build their place of worship. Although I agree with the Court of Appeal that the "island lot" was not available for the construction of the appellants' place of worship, I respectfully consider its conclusion regarding Ms. Jolicoeur's lot to be wrong. It reached that conclusion by means of an impermissible interference with the trial judge's assessment of the facts and even with his assessment of certain witnesses' credibility. Consequently, the trial judge's findings of fact with respect to the availability of this lot should be restored.
According to the principles restated by this Court in Housen v Nikolaisen,  2 S.C.R. 235, 2002 SCC 33, an appellate court may not review the findings of fact of a trial court unless the trial court has made a palpable, serious and overriding error. This duty of deference is particularly strong in respect of the assessment of witnesses' credibility. In the case at bar, as Robert C.J.Q. concluded, the trial judge made a reviewable error with respect to the availability of the "island lot". The trial judge clearly failed to take into account the consequences of the strip along the river bank and of the narrowness of the bridge providing access to the island.
Robert C.J.Q. also faulted the trial judge for making a palpable and overriding error regarding the availability of the lot belonging to Ms. Jolicoeur. His opinion on this point can be found in particular in the following comments from his reasons, at paras. 76-77 [translation]:
In my view, there was no need for the appellants to make a formal offer to purchase. Ms. Jolicoeur's disinterest, coupled with the uncontradicted statement that the Secretary-Treasurer had asked her not to sell to the Jehovah's Witnesses, led the appellants to believe in good faith that the lot was not available.
Furthermore, Ms. Jolicoeur's testimony five years after the fact to the effect that the lot was available in 1992 and 1993 and was still available in 1998 is surprising, to say the least. Her version of the facts is contradicted by her conduct throughout the years in question. The judge, in preferring her version, made a palpable and overriding error, particularly in attributing a hidden motive to the appellants, one not supported by the evidence, namely that they wanted a lot that was located near a major thoroughfare.
With respect, I do not believe that, on this point, the trial judge made a palpable and overriding error within the meaning of the case law of this Court. Dubois J. stated in his reasons for judgment that one of the appellants' representatives, Mr. Biagioni, testified that Ms. Jolicoeur had shown a marked disinterest in selling her property, that the Secretary-Treasurer of the municipality, a certain Mr. Campbell, had told her not to sell the lot to the Jehovah's Witnesses, and that she had not replied to the appellants' letters. The trial judge acknowledged that Ms. Jolicoeur's testimony was consistent with that of Mr. Biagioni in that she admitted that she had neither returned the appellants' calls nor responded to their letters. However, Dubois J. noted that the two witnesses contradicted each other on one specific and important point. Contrary to what Mr. Biagioni had said, Ms. Jolicoeur stated that Mr. Campbell had not called her to recommend that she not sell to the Jehovah's Witnesses, but to ask her why she had refused to sell them her land. She added that the appellants wanted to buy a portion of her land that was not for sale, that is, the one on the main road where the Pavillon Ste-Marie is located. She testified that she had offered to sell the back portion of her land to the appellants, but that they were not interested. Faced with this contradiction between the two witnesses, the trial judge found Ms. Jolicoeur to be more credible and preferred her version of the facts to Mr. Biagioni's version. Dubois J. therefore held that [translation] "Ms. Jolicoeur's testimony cannot be discounted, and her land in Zone P-3 was available in 1992 and 1993 and remains so to this day in 1998" (at p. 29). Thus, the trial judge addressed the issue of the witnesses' credibility. There was no need for the Court of Appeal to reassess the evidence heard by the trial judge to determine if this conclusion was reasonable. Absent a palpable error, the Court of Appeal should have deferred to the trial judge's finding of fact. Since this finding was valid, it should not have been varied by the Court of Appeal.
In these circumstances, since there was no valid reason for reviewing the trial judge's findings of fact, it is necessary to analyse the parties' submissions starting from the premise that at least one parcel of land in Zone P-3, the one that Ms. Jolicoeur owned behind the Pavillon Ste-Marie, remained available as a site for the appellants' place of worship. In my view, this finding of fact would justify dismissing the appellants' application from the outset, since it precludes a conclusion that the respondent infringed the appellants' constitutional guarantee of freedom of religion under s. 2(a) of the Charter, as we will now see.
C. Was There Infringement of Freedom of Religion Guaranteed by s. 2(a) of the Canadian Charter of Rights and Freedoms?
Before I address the question of freedom of religion, it should be noted that the municipality's zoning by-law did not prohibit the "place of worship" use everywhere within its boundaries; rather, it permitted this use in a specified zone. Therefore, the by-law cannot be considered prohibitive as defined by the courts (Saint-Michel Archange (Municipalité de), supra, at p. 882; J. L'Heureux, Droit municipal québécois, t. II (1984), p. 317, at para. 606). The wording of the by-law leaves room for the exercise of freedom of worship. We must now determine whether the room it leaves is consistent with the constitutional requirements of the Canadian Charter.
Freedom of religion is a fundamental right and represents a major triumph of our democratic society. The philosophical and political values underpinning Canadian democracy recognize the need to respect the diverse opinions and beliefs that guide the consciences and give direction to the lives of all members of our society. It is because of the crucial importance of this fundamental right that this Court decided it was essential to give it a liberal interpretation in R. v Big M Drug Mart Ltd.,  1 S.C.R. 295 (at p. 336):
The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.
The concept of freedom of religion, which is not strictly limited to the above definition , includes a positive aspect, that is, the right to believe or not believe what one chooses, to declare one's beliefs openly, and to practice one's religion in accordance with its tenets. This positive aspect also includes the right to proselytize, that is, to teach and disseminate one's beliefs. Freedom of religion also has a negative aspect, that is, the right not to be compelled to belong to a particular religion or to act in a manner contrary to one's religious beliefs (J. Woehrling, "L'obligation d'accommodement raisonnable et l'adaptation de la société à la diversité religieuse" (1998), 43 McGill L.J. 325, at p. 371). This fundamental freedom imposes on the state and public authorities, in relation to all religions and citizens, a duty of religious neutrality that assures individual or collective tolerance, thereby safeguarding the dignity of every individual and ensuring equality for all.
The duty of neutrality appeared at the end of a long evolutionary process that is part of the history of many countries that now share Western democratic traditions. Canada's history provides one example of this experience, which made it possible for the ties between church and state to be loosened, if not dissolved. There were, of course, periods when there was a close union of ecclesiastical and secular authorities in Canada. European settlers introduced to Canada a political theory according to which the social order was based on an intimate alliance of the state and a single church, which the state was expected to promote within its borders. Throughout the history of New France, the Catholic church enjoyed the status of sole state religion. After the Conquest and the Treaty of Paris, the Anglican church became the official state religion, although social realities prompted governments to give official recognition to the status and role of the Catholic church and various Protestant denominations. This sometimes official, sometimes tacit recognition, which reflected the make-up of and trends in the society of the period, often inspired legislative solutions and certain policy choices. Thus, at the time of Confederation in 1867, the concept of religious neutrality implied primarily respect for Christian denominations. One illustration of this can be seen in the constitutional rules relating to educational rights originally found, inter alia, in s. 93 of the British North America Act, 1867.
Since then, the appearance and growing influence of new philosophical, political and legal theories on the organization and bases of civil society have gradually led to a dissociation of the functions of church and state; Canada's demographic evolution has also had an impact on this process, as have the urbanization and industrialization of the country. Although it has not excluded religions and churches from the realm of public debate, this evolution has led us to consider the practice of religion and the choices it implies to relate more to individuals' private lives or to voluntary associations. (M.H. Ogilvie, Religious Institutions and the Law in Canada (2nd ed. 2003), at pp. 27 and 56). These societal changes have tended to create a clear distinction between churches and public authorities, placing the state under a duty of neutrality. Our Court has recognized this aspect of freedom of religion in its decisions, although it has in so doing not disregarded the various sources of our country's historical heritage. The concept of neutrality allows churches and their members to play an important role in the public space where societal debates take place, while the state acts as an essentially neutral intermediary in relations between the various denominations and between those denominations and civil society.
In this context, it is no longer the state's place to give active support to any one particular religion, if only to avoid interfering in the religious practices of the religion's members. The state must respect a variety of faiths whose values are not always easily reconciled. As this Court observed in Big M, supra, "[w]hat may appear good and true to a majoritarian religious group, or to the state acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view" (at p. 337; see also pp. 347, 350 and 351). In R. v Edwards Books and Art Ltd.,  2 S.C.R. 713, this Court had occasion to restate this concern with preventing public authorities from intruding on private beliefs (at p. 759):
The purpose of s. 2(a) is to ensure that society does not interfere with profoundly personal beliefs that govern one's perception of oneself, humankind, nature, and, in some cases, a higher or different order of being.
The guarantee of freedom of religion set out in s. 2(a) of the Charter prohibits the state from compelling an individual to adopt or renounce a particular belief or to practice a particular religion. This obligation remains essentially a negative one. As a general rule, the state refrains from acting in matters relating to religion. It is limited to setting up a social and legal framework in which beliefs are respected and members of the various denominations are able to associate freely in order to exercise their freedom of worship, which is a fundamental, collective aspect of freedom of religion, and to organize their churches or communities. In this context, the principle of neutrality must be taken into account in assessing the duty of public entities, such as municipalities, to actively help religious groups.
A review of the various components of the concept of freedom of religion might suggest that the rights protected by s. 2(a) of the Charter are absolute, but such is not the case. This freedom is limited by the rights and freedoms of others. The diversity of opinions and convictions requires mutual tolerance and respect for others. Freedom of religion is also subject to limits necessary "to protect public safety, order, health, or morals ...." (Big M, supra, at p. 337; Ross v New Brunswick School District No. 15,  1 S.C.R. 825, at para. 72; Trinity Western University v British Columbia College of Teachers,  1 S.C.R. 772, 2001 SCC 31, at para. 29). This Court has stressed that, in order to prove a violation of freedom of religion, it must be shown that the interference with the religious belief or practice in question is not trivial or insubstantial. Thus, churches and their members are not exempted from making any effort, or even sacrifice, inter alia in the exercise of their freedom of worship:
The Constitution shelters individuals and groups only to the extent that religious beliefs or conduct might reasonably or actually be threatened. For a state-imposed cost or burden to be proscribed by s. 2(a) it must be capable of interfering with religious belief or practice. In short, legislative or administrative action which increases the cost of practising or otherwise manifesting religious beliefs is not prohibited if the burden is trivial or insubstantial: see, on this point, R. v Jones,  2 S.C.R. 284, per Wilson J. at p. 314.
(Edwards Books, supra, at p. 759)
I concluded above that the trial judge's findings of fact regarding the availability of certain lots in Zone P-3 and, more specifically, of the one belonging to Ms. Jolicoeur, should be restored in this case. As this lot should have been considered available, the appellants cannot complain that the zoning by-law, by making it impossible for them to establish a place of worship in the municipality, violates their freedom of religion. The appellants could in fact have built a Kingdom Hall, on Ms. Jolicoeur's lot at least, had they come to an agreement with her.
As the municipality is required to be neutral in matters of religion, its by-laws must be structured in such a way as to avoid placing unnecessary obstacles in the way of the exercise of religious freedoms. However, it does not have to provide assistance of any kind to religious groups or actively help them resolve any difficulties they might encounter in their negotiations with third parties in relation to plans to establish a place of worship. In the case at bar, the municipality did not have to provide the appellants with access to a lot that corresponded better to their selection criteria. Such assistance would be incompatible with the municipality's duty of neutrality in that the municipality would be manipulating its regulatory standards in favour of a particular religion. Such support for a religious group could jeopardize the neutrality the municipality must adopt toward all such groups. Moreover, as this Court stated in Edwards Books, "[s]ection 2(a) does not require the legislatures to eliminate every minuscule state-imposed cost associated with the practice of religion" (at p. 759). Although the very nature of the zoning by-law means that the appellants 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. Neither the purpose nor the effect of this by-law has been to infringe the appellants' freedom of religion.
Since at least one lot remains available in Zone P-3 for the construction of their place of worship, the appellants must comply with the municipality's zoning by-law and build their place of worship in that zone, where such a use is authorized. Their religious beliefs and practices do not exempt them from complying with municipal by-laws. For this reason, I would dismiss the appeal. Having reached this conclusion, I could end my analysis here. However, for the sake of discussion only, and because of the nature of the debate that has taken place in the Quebec courts and in this Court and the importance of the constitutional issues raised, I propose to go on to review the parties' positions based on a different, fictitious premise. I will now consider what the legal consequences would have been had the evidence shown that no land was available in Zone P-3 for the appellants to establish a place of worship.
D. Hypothetical Situation in Which No Land Was Available in Zone P-3
The appellants submit that, because no land is available in Zone P-3, the zoning by-law, as it is drafted, combined with the municipality's refusal to amend it, constitutes an infringement of their freedom of religion under s. 2(a) of the Charter. If no land were in fact available, I would agree with them. Thus, under the zoning by-law, places of worship may be established only in Zone P-3, but no land would be available there. The appellants would therefore be unable to build their place of worship anywhere within the boundaries of the municipality. Freedom of religion includes the right to have a place of worship. Generally speaking, the establishment of a place of worship is necessary to the practice of a religion. Such facilities allow individuals to declare their religious beliefs, to manifest them and, quite simply, to practise their religion by worship, as well as to teach or disseminate it. In short, the construction of a place of worship is an integral part of the freedom of religion protected by s. 2(a) of the Charter.
In the case at bar, the appellants have shown that their Kingdom Hall, a place of prayer and contemplation that serves as a venue for weddings and funerals, is necessary to the manifestation of their religious faith. They should therefore be free to establish such a facility within the boundaries of the municipality. If no land were available in Zone P-3, they would be prevented from doing so, in which case they would be unable to practise their religion, and their freedom guaranteed by s. 2(a) of the Charter would be infringed accordingly.
Contrary to the conclusion of the majority of the Court of Appeal, I believe this infringement would not be solely attributable to the property owners who had refused to sell their land in Zone P-3 to the appellants. Our Court has stated that "the contribution of private actors to a violation of fundamental freedoms does not immunize the state from Charter review; rather, such contributions should be considered part of the factual context in which legislation is reviewed" (Dunmore v Ontario (Attorney General),  3 S.C.R. 1016, 2001 SCC 94, at para. 26). Thus, the infringement of the appellants' freedom of religion would result not from the existence of the zoning by-law, but from the refusal to adapt it to evolving community needs in a situation in which no land was available in the zone set aside for the establishment of places of worship.
The problem consists in identifying cases in which it will be possible to require the municipality to amend its zoning by-law while respecting its duty of neutrality. 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) of the Charter. The principle of neutrality discussed above means that the state must even refrain from implementing measures that could favour one religion over another or that might simply have the effect of imposing one particular religion. However, there may be situations in which an absolute application of this principle unduly restricts the free exercise of religion. In some cases, an inflexible application of the principle of neutrality that fails to take the circumstances into account may prove to be inconsistent with the right to the free exercise of religion. In this regard, Professor Woehrling observed that [translation] "the two constituent principles of freedom of religion - free exercise and state neutrality - must be regarded as mutually limiting, since giving the broadest scope to one will inevitably negate the other" (Woehrling, supra, at p. 379).
Our Court has noted on numerous occasions that it is not always enough for the state to adopt a posture of restraint. The Court has recognized that, in certain exceptional circumstances, positive government action may be required to make a fundamental freedom meaningful (Delisle v Canada (Deputy Attorney General),  2 S.C.R. 989, at paras. 7 and 33; Haig v Canada,  2 S.C.R. 995, at p. 1039; Dunmore, supra).
Dunmore, supra, is an example of a case in which exceptional circumstances imposed a positive obligation on the state. In Dunmore, Ontario's Labour Relations Act, 1995, S.O. 1995, c. 1, excluded agricultural workers from the labour relations scheme it established. The appellants contended that this exclusion infringed their right to freedom of association under s. 2(d) of the Charter. Bastarache J., writing for the majority, concluded that the total exclusion of these workers did in fact infringe their freedom of association and that a minimum level of protection had to be provided for persons employed in agriculture in Ontario. He noted that, in principle, the fundamental freedoms guaranteed by the Charter place only a negative obligation on the state, which is only required to refrain from interfering (at para. 19). However, when the state creates a situation that interferes with the exercise of a freedom, it may be required to take positive steps to put an end to the interference. In such a case, it is essential to prove that the limit complained of is related to the freedom at issue and not to access to a particular statutory scheme. In other words, it must be proven that the impugned measure makes it impossible to exercise, or at least substantially interferes with, one's freedom (at para. 25). As Bastarache J. mentions, it will only be in exceptional cases that under-inclusive legislation will have a substantial impact on the exercise of a fundamental freedom (at para. 22).
The case at bar involves one such exceptional situation in which a posture of restraint on the municipality's part would interfere with the appellants' freedom of religion. It would be utterly impossible for the appellants to establish their place of worship within the boundaries of the municipality if no land were available in the only zone where this type of use is authorized. As it would then be impossible to practise their religion, this would constitute direct interference with their freedom of religion. This is a clear example of a case in which freedom of religion can have no real meaning unless the public authorities take positive action. Since such positive action would be required, it would constitute a reasonable limit on the principle of state neutrality. Thus, for the appellants to enjoy their freedom of religion, the municipality would have to amend the by-law. This brings me to the question of the remedies that could have been available had I concluded that no land was available in Zone P-3.
E. What Are the Appropriate Remedies?
Since no infringement of a Charter right has been established in this case, there is nothing to remedy. However, had a violation been established, the appellants asked this Court to compel the municipality to amend its zoning by-law to allow the construction of heir place of worship on the lot they acquired in Zone C-3. The appellants also asked that this amendment not be subject to the process for approving amendments by way of referendum under ss. 123 to 130 and 132 ALUPD, because they contend that those provisions are contrary to the freedom of religion guaranteed by s. 2(a) of the Charter. Such a remedy could not have been granted in the circumstances of the case at bar.
This Court could in fact have ordered the municipality to amend its zoning by-law, but we could not have imposed on the municipality our choice of location for the establishment of the appellants' place of worship. The purpose of zoning by-laws is to organize a municipality's territory so as to protect citizens' interests and maintain order. They must be drafted in light of a large number of factors, and it is ordinarily only those with political power who are in a position to measure the impact of those factors. It would therefore have been up to the municipality to determine the zone where the appellants could establish their place of worship. In so doing, the respondent would have had to take into account the restrictions resulting from the regional development plans established by the regional county municipality pursuant to the Act respecting land use planning and development. Thus, 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. 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 or that it is considered suspect in relation to the values enshrined in the Charter. In the case at bar, the municipality did not draft a by-law to amend its zoning by-law, and a public meeting was not held to study such a draft by-law (ss. 125-27 ALUPD). The by-law was not submitted for the approval of the qualified voters to determine whether it would be submitted for approval by way of referendum (ss. 130-33 ALUPD), nor was a referendum held to approve the by-law to amend the zoning by-law. It cannot be assumed that residents of the municipality would look unfavourably on the Jehovah's Witnesses and that the outcome of a referendum would be negative. Thus, it would be inappropriate to declare ss. 123 to 130 and 132 et seq. ALUPD unconstitutional or to suspend, a priori, the operation of those provisions.
In short, if no land had been available in Zone P-3, this Court would have found an infringement of the freedom of religion protected by s. 2(a) of the Charter and would have ordered the municipality to review the zoning by-law, taking into account all the interests, both public and private, at issue, in order to amend it, if necessary, to permit the appellants, as far as possible, to build their place of worship within the municipality's boundaries. However, this Court would have had no valid reason to override the democratic control mechanisms provided for in Quebec's municipal legislation with respect to zoning.
I would also note in closing that the amalgamation of municipalities has probably resulted in changes relating to zoning in the municipality, which is now part of the city of St-Jérôme. As the parties did not discuss this consequence of the passage of time in a case that has been going on for too long, it would have been difficult for the Court to devise an effective remedy.
F. The Impact of Administrative Law
In addition to the constitutional questions discussed so far, this appeal has administrative law implications. However, the appellants declined to base their case on the principles of administrative law, preferring to focus on their arguments based on freedom of religion. As a result, the questions of administrative law cannot form the basis of this Court's decision, although some comments are in order due to the importance of these questions.
In their pleadings, the appellants limited themselves to maintaining that the municipality, in refusing to amend its zoning by-law, had exercised its discretion in an unreasonable and arbitrary manner and had acted in bad faith. Although these contentions are not supported by the evidence, they do show that an argument relating to procedural fairness, based on the reasons given for the municipality's negative decisions, could have been raised by the appellants, but they declined to do so at the hearing before this Court.
The municipality's decision to refuse to amend its zoning by-law is within the scope of its discretionary power, as it had to decide whether it would be appropriate to amend the by-law. The municipality had a range of options at its disposal, and its constituting act did not dictate which one it should select (Baker v Canada (Minister of Citizenship and Immigration),  2 S.C.R. 817, at para. 52). This type of decision made by an administrative authority can at times be subject to a duty of procedural fairness. For example, the Act respecting administrative justice, R.S.Q., c. J-3 ("AAJ"), which was enacted by the Quebec legislature on December 16, 1996, and came into force on April 1, 1998, after the facts giving rise to this case took place, requires government departments and bodies to comply with procedural fairness in their discretionary decision-making processes. Thus, the organizations to which this act applies have a duty to act fairly (s. 2 AAJ), including a requirement to give reasons for any unfavourable decisions they make (ss. 5 and 8 AAJ). As municipalities are not subject to this act (s. 3 AAJ), it must be determined whether they are subject to the same duty by virtue of the legal rules gradually developed by the common law to define the obligations of procedural fairness applicable to government organizations.
In Baker, supra, this Court stated that "[t]he fact that a decision is administrative and affects `the rights , privileges or interests of an individual' is sufficient to trigger the application of the duty of fairness: Cardinal v Director of Kent Institution,  2 S.C.R. 643, at p. 653" (at para. 20). To define the variable content of this duty, it is necessary to consider five open-ended factors that serve to ensure that individuals affected by a decision have the opportunity to present their case fully and fairly and that decisions are made using a fair, impartial and open process appropriate to their statutory, institutional and social context (Baker, at paras. 22 and 28). Thus, the scope of this duty will depend on the nature of the decision, on the decision-making process, on the nature of the statutory scheme, for example whether it includes a right of appeal, on the importance of the decision to the person affected, on the legitimate expectations of that person and on the choices of procedure made by the decision-making body (Baker, at paras. 23-28).
When applied to the case at bar, these factors would, at the least, place the municipality under an obligation to give reasons for its repeated refusals to amend its zoning by-law. The municipality's decision regarding the application to amend the zoning by-law, which was not subject to a specific decision-making process, could not be appealed by the appellants even though it had a direct effect on their right to freedom of religion guaranteed by s. 2(a) of the Charter. Normally, the appellants could expect to receive reasons from the municipality for its decision. The importance of a negative decision to the appellants, who as a result found it impossible to build the place of worship they needed to practice their religion, in itself placed the municipality under an obligation to give reasons for its decision.
The municipality did not give sufficient reasons for its decisions. After receiving the appellants' application to amend the zoning by-law in relation to their first offer to purchase the lot located in a residential zone, the municipality's explanation for its refusal was that such an amendment would result in an increase in the taxation rate and that the owners of adjacent lots who would be affected by this increase would not take part in the process of approval by way of referendum provided for in the Act respecting land use planning and development. Then, when the municipality refused to amend its zoning by-law in relation to the second lot the appellants wished to purchase, the one located in Zone C-3, it justified its decision on the basis that lots were available in Zone P-3 but did not identify the lots in question. The appellants, convinced that no lots were available in that zone, then applied to the municipality on four other occasions to amend the zoning by-law. The municipality simply repeated that lots were available in Zone P-3 and that it was therefore under no obligation to amend its zoning by-law.
In its replies, the municipality never did specify which lots were available or give any other reasons for its decision. This refusal to provide the appellants with valid reasons is obvious from a letter the municipality's attorney sent to the appellants on August 24, 1993, in which he wrote, [translation] "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". The respondent should have given more detailed reasons for its decisions.
More detailed reasons would have given the appellants a better understanding of the municipality's decision and, above all, demonstrated to them that there were in fact lots available in Zone P-3. As a result, they would not have been left with the impression that the municipality's decision was arbitrary or that the municipality had acted in bad faith. A more precise and rigorous justification would therefore have given the municipality's decision-making process the required transparency and the appearance of procedural fairness.
For the reasons set out here, I would answer the constitutional questions in the negative and dismiss the appeal with costs.
Constitutional and Legislative Provisions
Canadian Charter of Rights and Freedoms
Everyone has the following fundamental freedoms:
Cities and Towns Act, R.S.Q., c. C-19
The council may make by-laws:
Village de Lafontaine, By-law No. 361, Zoning By-law (April 2, 1991)
For the purposes of this by-law, certain uses are grouped based on compatibility. These uses are:
Act respecting land use planning and development, R.S.Q., c. A-19.1
The council of a municipality may adopt a zoning by-law for its whole territory or any part thereof.
A zoning by-law may include provisions regarding one or more of the following objects:
Sections 124 to 127 apply with respect to
For the purposes of this division, a by-law that is subject to approval by way of referendum is a by-law that
Every by-law to which this section applies shall be adopted in draft form by the council of the municipality.
The municipality shall hold a public meeting in connection with the draft by-law, presided by the mayor or by a member of the council designated by the mayor.
The date, time and place of the meeting shall be fixed by the council, which may delegate all or part of this power to the clerk or secretary-treasurer of the municipality.
At least seven days before the public meeting is held, the clerk or secretary-treasurer of the municipality shall post, in the office of the municipality, a notice setting out the date, time, place and object of the meeting, and publish it in a newspaper circulated in its territory.
During the public meeting, the person presiding must explain the draft by-law and hear every person or body wishing to express an opinion.
Where the draft by-law contains a provision making it a by-law subject to approval by way of referendum, the person responsible for explaining the draft by-law shall identify that provision and explain the nature of and means of exercising the right of certain persons to make an application, pursuant to the provisions of subdivision 2, for any by-law containing that provision to be submitted for the approval of certain qualified voters.
Once the public meeting on a draft by-law containing a provision making it a by-law subject to approval by way of referendum has been held, the council of the municipality shall adopt, with or without change, a second draft by-law. No such provision may be included in the second draft by-law unless it relates to a matter in respect of which such a provision was included in the first draft by-law.
However, the council is not bound to adopt a second draft by-law if the by-law it adopts under section 134 no longer contains any provision making it a by-law subject to approval by way of referendum.
A summary of the second draft by-law may be produced under the responsibility of the municipality.
If the second draft by-law contains a provision making the by-law a by-law subject to approval by way of referendum, an application may be made under this section and under sections 131 and 133 to require that any by-law containing the provision that is adopted under section 136 be submitted for the approval of certain qualified voters.
Every interested person in a zone or a sector of a zone may sign an application originating from that zone or sector.
For the purposes of this subdivision, an interested person in a given zone or sector of a zone is a person who would be a qualified voter and whose name would be entered on the referendum list of the zone or sector if the reference date, within the meaning of the Act respecting elections and referendums in municipalities (chapter E-2.2), was the date of adoption of the second draft by-law and if the sector concerned, within the meaning of that Act, was that zone or sector.
Following the adoption of the second draft by-law, the clerk or secretary-treasurer shall, in accordance with the Act governing the municipality for such purposes, issue a public notice
An application, in order to be valid, must
The provisions of the Act respecting elections and referendums in municipalities (chapter E-2.2) dealing with the manner in which a legal person may exercise its rights, the manner in which qualified voters entitled to have their names entered on the referendum list are to be counted, and applications for the holding of a referendum poll apply, adapted as required, to the signing of an application.
Cardinal v Director of Kent Institution,  2 S.C.R. 643; Martineau v Matsqui Institution Disciplinary Board,  1 S.C.R. 602; Nicholson v Haldimand-Norfolk Regional Board of Commissioners of Police,  1 S.C.R. 311; Baker v Canada (Minister of Citizenship and Immigration),  2 S.C.R. 817; Godbout v Longueuil (City),  3 S.C.R. 844; Toronto (City) v Trustees of the Roman Catholic Separate Schools of Toronto,  A.C. 81; Kuchma v Rural Municipality of Tache,  S.C.R. 234; Norfolk v Roberts (1915), 50 S.C.R. 283; In re Glover and Sam Kee (1914), 20 B.C.R. 219; Re Howard and City of Toronto,  1 D.L.R. 952; Roncarelli v Duplessis,  S.C.R. 121; Kane v Board of Governors of the University of British Columbia,  1 S.C.R. 1105; Bendahmane v Canada (Minister of Employment and Immigration),  3 F.C. 16; Qi v Canada (Minister of Citizenship and Immigration) (1995), 33 Imm. L.R. (2d) 57; Mercier-Néron v Canada (Ministre de la Santé nationale et du bien-être social) (1995), 98 F.T.R. 36; Prud'homme v Prud'homme,  4 S.C.R. 663, 2002 SCC 85; Whiten v Pilot Insurance Co.,  1 S.C.R. 595, 2002 SCC 18; Young v Young,  4 S.C.R. 3; Saint-Michel-Archange (Municipalité de) v 2419-6388 Québec Inc.,  R.J.Q. 875; Orford (Canton) v Fonds de placement Hamel inc.,  Q.J. No. 2260 (QL); R. v Big M Drug Mart Ltd.,  1 S.C.R. 295; R. v Edwards Books and Art Ltd.,  2 S.C.R. 713; Ross v New Brunswick School District No. 15,  1 S.C.R. 825; Trinity Western University v British Columbia College of Teachers,  1 S.C.R. 772, 2001 SCC 31; Dunmore v Ontario (Attorney General),  3 S.C.R. 1016, 2001 SCC 94; Delisle v Canada (Deputy Attorney General),  2 S.C.R. 989; Haig v Canada,  2 S.C.R. 995.
Act respecting Administrative Justice, R.S.Q., c. J-3, ss. 1 to 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, ss. 2, 27.
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. 188.8.131.52, 184.108.40.206.
Authors and other references
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.
André Carbonneau & David M. Gnam, for the appellants (instructed by André Carbonneau, Montréal).
Michel Lalande & Jean-Pierre St-Amour, for the respondents Municipalité du village de Lafontaine and Harold Larente (instructed by Deveau, Bissonnette, Monfette, Fortin & Associés, Saint-Jérôme).
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