Barrister and Solicitor
Legal Writing and Research
Regulatory Offences - Defences - Estoppel by Prior Action of Regulatory Authorities
Immeubles Jacques Robitaille inc. v Québec (scc, 2014)
In this case the Supreme Court of Canada elaborated on the circumstances required for a defendant to a regulatory offence to make out a defence of estoppel by way of prior action of the prosecuting authority. The defendant appealed from a Quebec conviction for operating a commercial parking lot contrary to zoning by-laws, pointing to the municipality's prior collection of commercial-rate taxes, erection of a public sign directing people to the lot, and several other instances of apparent condonement of the illegal use.
(1) Estoppel in the Context of a Strict Liability Offence
 In the public law context, promissory estoppel requires proof of a clear and unambiguous promise made to a citizen by a public authority in order to induce the citizen to perform certain acts. In addition, the citizen must have relied on the promise and acted on it by changing his or her conduct (Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), 2001 SCC 41 (CanLII), 2001 SCC 41,  2 S.C.R. 281, at paras. 45‑46 (“Mount Sinai”), quoting Maracle v. Travellers Indemnity Co. of Canada, 1991 CanLII 58 (SCC),  2 S.C.R. 50; J.‑P. Villaggi, L’Administration publique québécoise et le processus décisionnel: Des pouvoirs au contrôle administratif et judiciaire (2005), at p. 329).
 However, the doctrine of estoppel must yield in the public law context to an overriding public interest and may not be invoked to prevent the application of an express legislative provision (Mount Sinai, at para. 47; St. Ann’s Island Shooting and Fishing Club Ltd. v. The King, 1950 CanLII 28 (SCC),  S.C.R. 211, at p. 220).
 Furthermore, although the doctrine of estoppel has been applied against public authorities in the past, the promises made by the representatives of the authorities in those cases were not unlawful, or were actually consistent with a statutory discretion (Re Multi‑Malls Inc. and Minister of Transportation and Communications 1976 CanLII 623 (ON CA), (1976), 14 O.R. (2d) 49 (C.A.); Sous‑ministre du Revenu du Québec v. Transport Lessard (1976) Ltée,  R.D.J. 502 (C.A.); Aurchem Exploration Ltd. v. Canada reflex, (1992), 91 D.L.R. (4th) 710; Kenora (Town) Hydro Electric Commission v. Vacationland Dairy Co‑operative Ltd., 1994 CanLII 105 (SCC),  1 S.C.R. 80).
 As Binnie J. stated in Mount Sinai, “[p]ublic law estoppel clearly requires an appreciation of the legislative intent embodied in the power whose exercise is sought to be estopped” (para. 47). In the case at bar, the appellant argues that owing to estoppel, it was not open to the respondent to issue the statement of offence against it under the zoning by‑law (A.F., at para. 85). The offence in question in the instant case results from the combined effect of arts. 40, 83 and 359 of the By‑law:
[translation] 359. [Offences] The penal recourse exists to enable a municipality to enforce zoning by‑laws, which are adopted to ensure harmonious development of the urban area (M.‑A. LeChasseur, Le zonage en droit québécois, (2006), at p. 1). Moreover, [translation] “zoning is established for the benefit of each of the various owners in a zone, and unlawful use by one owner is generally at the expense of the rights of the others” (Mascouche (Ville) v. Thiffault, 1996 CanLII 6503 (QC CA), 1996 CanLII 6503, at p. 3 (Que. C.A.)). In my opinion, the public interest must be taken into account in adopting a zoning by‑law, and the by‑law’s penal provisions ensure that it is complied with. Given how explicit this provision is, the doctrine of estoppel is of no assistance to the appellant.
Every person who contravenes the provisions of this by‑law is guilty of an offence and liable on conviction:
. . .
Where the offender is a legal person, the sanctions to be imposed are as follows:
(1) for a first offence, a minimum fine of $200 and costs;
. . .
 The application of public law promissory estoppel could force a public authority to exercise a discretion in a particular way (Villaggi, at p. 329). The adoption or amendment of a municipal by‑law generally falls within the discretion of the municipal council (J. Hétu and Y. Duplessis, Droit Municipal: Principes généraux et contentieux (2nd ed. (loose‑leaf)), vol. 1, at para. 11.25; Laurentide Motels Ltd. v. Beauport (City), 1989 CanLII 81 (SCC),  1 S.C.R. 705, at p. 722). However, the same is not true of ensuring compliance with municipal by‑laws: [translation] “Although it is generally agreed that municipal authorities have a broad discretion in exercising their power to adopt by‑laws, the situation is quite different when it comes to the enforcement of by‑laws: at that stage, any discretion must give way to the principle of equality before the law” (Loblaw Québec ltée v. Alimentation Gérard Villeneuve (1998) inc., 2000 CanLII 9893 (QC CA),  R.J.Q. 2498, at para. 79 (C.A.), citing City of Verdun v. Sun Oil Co., 1951 CanLII 53 (SCC),  1 S.C.R. 222).
 Although a municipality is not under an obligation to do everything it can to ensure compliance with its by‑laws and cannot be compelled to enforce them (s. 576 of the Cities and Towns Act; Hétu and Duplessis, at para. 8.203), neither can it grant citizens a right to non‑conforming uses on its territory. The authorization by a municipal employee or elected official of a use that violates a provision of a by‑law cannot create rights or oust the applicable standards set out in the by‑law (Hétu and Duplessis, at para. 8.207; Sainte‑Barbe (Municipalité de la paroisse) v. Cadieux, 2004 CanLII 20665 (QC CS), 2004 CanLII 20665, at para. 66 (Que. Sup. Ct.)).
 Insofar as the appellant in the case at bar is arguing that the substance of the promise was an authorization to violate the zoning by‑law (a “promise” that flowed from the respondent’s actions or from a tolerance on its part), the only possible conclusion is that such a promise cannot lead to the application of public law estoppel. Since a municipality cannot deviate from its zoning by‑laws or authorize such a deviation (with the exception of minor exemptions under s. 145.1 of the Act respecting land use planning and development), it cannot be forced to do so by means of the doctrine of estoppel.
 As the Quebec Court of Appeal rightly concluded in Québec (Ville de) v. Société immobilière du Québec, 2013 QCCA 305 (CanLII), 2013 QCCA 305 (CanLII), at paras. 61‑62:
[translation] The effect of “promissory estoppel” is to prevent an authority from deviating from its undertakings. However, there is an important qualification to this doctrine, namely that the authority in question may not make undertakings that are contrary to law or to the public interest. This is what the Supreme Court held in Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services) . . . . Analogies with other penal offence schemes are not without relevance in this regard. For example, a public authority cannot be precluded from issuing a statement of offence against an individual who allegedly contravened the highway safety code on the basis that the authority has never done so before or that some of its representatives suggested to the individual that his or her conduct was acceptable. Strict liability regulatory offences are adopted in the public interest (R. v. Sault Ste. Marie, 1978 CanLII 11 (SCC),  2 S.C.R. 1299), are specific and have the force of law — including against the public authority that adopted and enforces them. The doctrine of public law estoppel cannot prevent their being applied.
In my opinion, therefore, the doctrine of “promissory estoppel” would not have been available if no exception had been applicable. If a citizen is subject to the By‑law, a municipality must [require that it be complied with].
 In short, the doctrine of estoppel cannot be relied on as a defence in the case of a regulatory offence. It is well established that this doctrine cannot be raised in a public law context in the face of a clear legislative provision. In the instant case, the by‑law is clear, and it creates a strict liability offence on grounds related to the public interest and does not authorize the municipality to consent to a non‑conforming use.
 Nor, it should be added — although it is not necessary to do so to decide this appeal, which arises in a penal law context — can estoppel be raised as a defence in a civil proceeding relating to an express provision of a by‑law in which a non‑conforming use is at issue. The principle that estoppel cannot be raised in the face of an express legislative provision is valid both in the penal law context and in that of a civil proceeding.