Town Hall, May 2008

Town Hall, May 2008
City of Montreal v. 2952-1366 Quebec Inc.: the Supreme Court reaffirms the use of general language in environmental statutes
By Charles Kazaz
Fasken Martineau DuMoulin LLP, Montreal and Toronto

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As many readers are aware, environmental legislation often contains prohibitions that are drafted in very general terms. For example, most, if not all, provincial environmental statutes contain a provision along the lines that “no one may discharge a contaminant into the environment that causes or is likely to cause an adverse effect.” In the early 1990s, there was significant debate as to whether such a broad prohibition is valid, given that it is drafted in terms that may be too vague to be applicable, and was therefore void for vagueness under administrative or constitutional law principles. In a nutshell, the argument went that because of its general nature, the prohibition was overbroad, such that those subject to the legislation could not properly distinguish between prohibited and permitted acts.

In 1995, the Supreme Court of Canada, in Ontario v. Canadian Pacific Ltd. [1995] 2 S.C.R. 1031, decided that in the context of environmental legislation, such broadly drafted prohibitions are valid. The majority of the Supreme Court held that in the context of environmental legislation, a strict requirement of drafting precision might undermine the ability of the legislature to provide a comprehensive and flexible regime.

Now, ten years later, the issue has resurfaced before the Supreme Court in City of Montreal v. 2952-1366 Quebec Inc., 2005 S.C.R. 62. In the case, a club owner placed loudspeakers outside a club that amplified music so that passersby on St. Catherine Street could hear the music. The club was charged under s.9(1) of the city’s noise by-law, which provides: “ … where they can be heard from outside, are specifically prohibited noise produced by sound equipment whether it is inside a building or installed or used outside