The city must protect the life and health of its citizens
When he takes an oath at the beginning of his mandate, each mayor implicitly undertakes to protect his population.
The law gives the mayor the power to “order any expenditure deemed necessary and award any contract necessary to remedy the [health] situation” without any referendum.
Many cities took that route already.
No Beaconsfield mayor accepted to assume this responsibility since 1986.
When he takes an oath at the start of his mandate, each mayor implicitly undertakes to protect his population. This is the essential argument of the legal responsibility of the city and the mayor, its principal elected representative towards it’s citizens and their health.
21.1 All citizens of Quebec have rights
All citizens of Quebec have rights including the right to enjoy their property.
“Everyone has the right to peaceful enjoyment and the free disposal of their property, except to the extent provided by law”
“No right may be exercised with the intent of injuring another or in an excessive and unreasonable manner, and therefore contrary to the requirements of good faith”
The rights of nearby residents are confirmed: Charlesbourg
The rights of residents living near highways were confirmed following a class action of $ 50 million in 2011. Citizens of Charlesbourg filed this action against the Ministère des Transports du Québec (MTQ) for non-compliance with the rules of good neighborliness included in the Civil Code and environmental laws, which protect from noise pollution.
In 2017 the MTQ and the City of Quebec undertook to build such an acoustic barrier at shared costs, according to plans and specifications that the applicant accepted. “The backyards of these properties are to be avoided in summer,” concluded Judge Michaud, speaking of the cases where the noise is most intense.
Liability without fault: Ciment Saint-Laurent (2008)
The Civil Code also adds a second protection known as “faultless liability” to general liability based on fault. So that even a legal nuisance can be declared excessive. On November 20, 2008 the decision of the Supreme Court of Canada confirmed that all citizens, and not only property owners, have the right to bring a class action for “abnormal or excessive” nuisances even if these nuisances are authorized by law or if they comply with environmental standards. The Supreme Court then condemned Ciment Saint-Laurent to pay more than 15 million to the citizens of Beauport where, from 1991 to 1997, the citizens suffered from dust, noise and inconvenience deemed entirely “abnormal and excessive”.
21.2 Cities must protect the lives and health of their citizens
Cities and municipalities are creatures of the provincial government. A city is not above the law and it has the duty, like any other person, to comply with laws and regulations, especially if they are promulgated by the same provincial government.
Cities and Towns Act: act when there is a threat to health
A mayor is responsible for representing the population, for ensuring good administration by sitting on the council and he is the chief executive of the municipality. It goes without saying (implicit) that a mayor should see to the well-being of his population and to protect the health of his citizens.
According to the City and Town Act, one of the most important responsibilities of a city mayor is to ensure that the health of its citizens is protected in extraordinary situations.
“in case of irresistible force of such a nature as to imperil
the life or health of the population or seriously damage the equipment of the municipality, the mayor may
order any expenditure deemed necessary and award any contract necessary to remedy the situation. “
This responsibility is confirmed by article 556 and by law 122 art. 66 which stipulates that the mayor has full authority to eliminate a risk to the health or safety of persons:
“Approval by [qualified voters] is not required when certain criteria are met, for example if it concerns:
> road works, drinking water supply or wastewater treatment, or if it is a project aimed at eliminating a risk to human health or safety and that the loan is reimbursed by general income or is entirely borne by the owners of buildings throughout the territory of the municipality;
> expenses provided for in the regulations which are subsidized at 50% or more by the government; “
MTQ shares responsibility with cities
In 1998, the MTQ adopted its “Road noise policy”, recognizing its partial and shared responsibility with the municipalities for excessive noise levels generated by traffic on the roads under its jurisdiction. It recommends that:
“Mitigation measures are implemented in the areas established along the road network under the responsibility of the MTQ when outside noise reaches a threshold of 65 decibels over a 24-hour period. (65 dBA Leq 24h). “
Mitigation measures (eg acoustic barriers) are now included in the MTQ‘s new highway construction projects.
In the case of highways already existing when this policy was adopted, the MTQ proposes to share the costs associated with implementing road noise mitigation measures with the municipality concerned.
More than 40 joint acoustic barriers projects funded 50-50 with municipalities have been carried out since the introduction of this policy.
The policy has therefore been applied everywhere in Quebec except in Beaconsfield, which has not yet accepted the MTQ’s offer (75/25). All of Beaconsfield’s mayors for over 30 years have refused to commit to paying the city’s fair share of noise mitigation measures along the highway. Is this a case of “faultless liability” as mentionned above and stipulated in the Civil Code and confirmed by the Supreme Court?
A unique and advantageous proposition for Beaconsfield
In 2015, the Minister of the MTQ at the time, Robert Poeti, declared “The citizens of Beaconsfield have suffered enough” and made an exceptional proposal: the MTQ will pay 75% of the costs of the project.
A preliminary study concerning this project was due in March 2020. COVID postponed its filing. Since 2015, the mayor of Beaconsfield has refused to approve the agreement.
The mayor has announced his intention to call a referendum on the loan by-law (contradicting the CTA article 556 cited above). He therefore does not use the authority conferred on him by the CTA to eliminate a risk to the health or safety of persons despite having recognized the documented health problems caused by the polluted corridor.
Scientific opinions confirm responsibility for cities
Research organizations have made recommendations regarding the responsibilities of cities. Here are two of these studies: the WHO and the INSRQ assign municipalities responsibilities to correct the situation:
« For implementation of the guidelines it is recommended that:
> Governments should protection the population from community noise and consider it an integral part of their policy of environmental protection.
> Governments should consider implementing action plans with short-term, medium-term and long-term objectives for reducing noise levels.
> Governments should adopt the Health Guidelines for Community Noise values as targets to be achieved in the long-term.
> Governments should include noise as an important public health issue in environmental impact assessments.
> Legislation should be put in place to allow for the reduction of sound levels.
> Existing legislation should be enforced.
> Municipalities should develop low noise implementation plans. » P.16-17
“This scientific opinion takes stock of the proven effects of environmental noise on people’s health and quality of life, on the exposure of Quebecers, on the socio-legislative context and on the interventions that can guide the various levels of government to mitigate and prevent the effects of noise. It aims to document the relevance of establishing a public noise abatement policy in Quebec. »P 29
Recommendation 6: “That the policy contain the provisions necessary to support municipal authorities (RCMs, municipalities, metropolitan communities) in the application of land use planning and development measures, favorable to the maintenance or creation of sound environments healthy. »P.115
Recommendation 7: “(…) ministries, cities and organizations adopt best practices and measures to reduce the effects of environmental noise in their area of responsibility and promote it to the players concerned (manufacturers, distributors, promoters and citizens). P.116
(…) Groups of the population more vulnerable to noise as identified by the WHO should also be taken into account (children, people with chronic diseases and the elderly). ” P.116