December 2012

Details on the notice of motion with regards to urban planning

By Joanne Côté Lawyer

In certain circumstances, under the Act respecting land use planning and development (hereinafter the Act), as soon as a notice of motion is filed, local municipalities may prohibit certain uses, structures or subdivisions that would not be allowed if the by-law that is the subject of the notice of motion were adopted.

But in order to be prohibitive from the moment it is filed, the notice of motion must be sufficiently detailed. In Dorval (Ville de) v. Centres de la jeunesse et de la famille Batshaw, 2012 QCCA 1493, the Québec Court of Appeal ruled that a notice of motion that does not specifically detail the prohibited use within a given zone will not result in the intended prohibitive effect. The court stated:

[Translation] "Considering all this, this rule generally applies: severe consequences require severe warning. Therefore, any amending by-law designed to prohibit a use that was previously authorized in a particular zone must explicitly state as much in the notice of motion. Otherwise, the notice of motion will not be in compliance with section 114 of the Act and cannot have the intended prohibitive effect, as prescribed by the article."

In this particular matter, the prohibitive effect attributed to the notice of motion as per section 114 of the Act was not taken into consideration, since the motion allowed for a certain use in a number of zones in the city without specifically stating that the use was prohibited in others. While the city unsuccessfully argued that a use authorized in certain zones was necessarily prohibited in others, the Court concluded that this by-law interpretation principle did not apply to a notice of motion.

In light of these circumstances, to ensure that a notice of motion has a prohibitive effect as soon as it is filed, it must be specific and detail the prohibition, as outlined in the draft by-law.