The saying “The King can do no wrong” is no longer unquestionable. If, at some point in time, decisions by the State could not be challenged, the evolution of law made it possible to have the courts review some of them under particular circumstances. Recently, in Maltais c. Procureure générale du Québec, 2020 QCCA 715, the Court of Appeal held that the State could be a bad neighbour, but its immunity made it impossible for those who suffered the inconveniences to be compensated.
Essentially, in 1963, the Laurentian highway (A-73) was inaugurated in the Quebec City area. With the passage of time, vehicle circulation increased, thereby increasing the noise level. Neighbouring homeowners complained to the authorities, requesting that measures be taken to reduce the noise level. Discussions between the municipal and provincial authorities took place, studies on noise pollution were carried out, new measures to try to contain the noise were discussed, but no real solutions for the inconvenienced homeowners were adopted. As a result, an application for authorization to institute a class action was filed by a dissatisfied homeowner in May 2009. One year later, the Superior Court dismissed the application because of the immunity of the State, but the Court of Appeal overturned that decision in July 2011, stating that any argument regarding the application of the immunity of the State would be decided on the merits, and not at the authorization stage.
In the meantime, a pilot project for the construction of an anti-noise wall was completed. As the results were conclusive, the class action was amended to compel the completion of the wall.
The trial judge concluded that the residents and the ministère des Transports du Québec [MTQ] were to be considered neighbours, but dismissed MTQ’s position that it was merely managing the relevant stretch of highway. The judge concluded that in certain cases, the noise exceeded the normal limit of tolerance by a neighbourhood allowed by the Civil Code of Quebec [CCQ]. However, the judge did not consider that there was any fault under article 1457 CCQ by the MTQ in the application of its policies and instructions on noise level. The judge also highlighted that despite the fact that the situation could infringe the Environment Quality Act or, possibly, provisions of the Charter of Human Rights and Freedoms, this would not be considered as a civil fault in itself and that the elements of a fault must still be demonstrated.
Moreover, the trial judge indicated that the decision to apply noise attenuation measures is a political decision involving many different considerations not limited to the noise level. Therefore, since this can be considered a political intervention, without any evidence of bad faith or irrationality, State immunity applies.
On appeal, the plaintiff and class representative questioned the immunity of the State.
The Court of Appeal first reviewed the notion of neighbourhood annoyance and stated that although the MTQ is not the user of the highway and therefore does not generate the noise, since as proprietor, it allows the use of the road that causes the noise, this is sufficient to be considered as a neighbourhood annoyance, thereby relieving the plaintiff from having to demonstrate fault by the State.
The Court of Appeal stated that a specific liability regime applies to the State, including the public law rules that shield the State from liability for general political decisions. This immunity does not protect the State when it is implementing decisions or exercising simple management: the general notion of fault still applies.
The Court of Appeal therefore confirmed that if the State was protected under the general fault regime, it would be inconsistent not to apply the same immunity to the no-fault regime of neighbourhood annoyances.
The appellant held that the State implicitly abandoned its immunity by providing, in the Environment Quality Act that it applies to the Government. The Court held that while this Act compels the State to abide by requirements for certificates and permits, it has no impact on the general civil liability regime. The State’s immunity is therefore not set aside by the legislator’s will to have it comply with the law’s requirements, and the same reasoning applies with the Charter.
Therefore, while noise arising from the Laurentian Highway exceeds the threshold of normal neighbourhood annoyances, the MTQ cannot be compelled to implement noise-control measures or pay compensation to homeowners disturbed by the noise.