Are There Limits to the Power to Intervene of the Administrative Tribunal of Quebec in Connection with an Order Issued Under the Environment Quality Act?

The first paragraph of section 96 of the Environment Quality Act (the “EQA”) provides that “any order” issued by the Minister of Sustainable Development, Environment and the Fight Against Climate Change (the “Minister”) may be contested by the municipality or person concerned before the Administrative Tribunal of Québec (the “ATQ”), subject to certain exceptions specified in that paragraph. 

Section 15 of the Act respecting Administrative Justice (the “AAJ”) establishes the ATQ’s power to intervene in connection with an administrative decision, such as an order issued by a minister: 

15. The Tribunal has the power to decide any question of law or fact necessary for the exercise of its jurisdiction

Contestation of a decision.

In the case of the contestation of a decision, the Tribunal may confirm, vary or quash the contested decision and, if appropriate, make the decision which, in its opinion, should have been made initially

(Emphasis added)  

Courts and doctrinal writers have examined whether there are“implicit limits” on the ATQ’s power to intervene and substitute its opinion for that of the Minister as to the advisability of issuing an order. In this regard, in a 2001 decision of the Court of Appeal, Madam Justice Thibault, in obiter, narrowly construed the scope of section 15 of the AAJ: 


[90] Does section 15 allow the Tribunal to substitute its opinion for that of the Minister as to the advisability of issuing an order? Nothing in this provision of general application suggests that the legislature intended to depart from the separation of powers rule and confer upon an administrative tribunal the power to substitute its discretion for that of the administrative entity as to the advisability of a decision. On the other hand, in accordance with the rules of administrative law, the Tribunal may scrutinize the legality of the Minister’s decision to ensure it was not tainted by abuse of power, bad faith or fraud.1

(Emphasis added)

Recently, in the Kozlowski case2, two directors went before the ATQ to contest an order issued by the Minister under section 114 of the EQA enjoining them to restore their premises to their original state following the performance of work that had been performed in violation of section 22 of the EQA. In its decision, the ATQ refused to follow Madam Justice Thibault’s obiter opinion cited above and concluded that its power to intervene was unlimited:


[548] We understand from that obiter dictum that the Court of Appeal based its interpretation on the separation of powers principle and the role of administrative tribunals in that context. Since then, the Court of Appeal has clearly stated that this Tribunal is not part of the judicial branch of government but of the executive branch. As such, as is the case with the Minister, the Tribunal’s mission differs from that of the courts. The separation of powers rule as an implied basis for limiting the Tribunal’s power does not apply in this instance.          


[551] Thus, the provisions of the EQA, the legislative history of section 96 thereof, the Tribunal’s place in the administrative regime, its specialized nature and the fact that it is proceeding de novo lead the Tribunal to conclude that there is no express or implicit limit on its power to intervene pursuant to the second paragraph of section 15 AAJ in respect of an order issued by the Minister under section 114 EQA

(Emphasis added) 


It should be noted that the ATQ’s decision in the Kozlowski case is now before the Superior Court on judicial review. It will be interesting to see whether this broad interpretation of the ATQ’s power to intervene in Kozlowski will be followed in subsequent files that come before that tribunal, and whether the courts will confirm its interpretation of section 15 of the AAJ.

1 Cie pétrolière Impériale ltée v. Québec (Ministre de l’Environnement), [2001] R.J.Q. 1732 (C.A.), confirmed by the Supreme Court of Canada on other grounds, [2003] 2 S.C.R. 624.
2 Kozlowski v. Québec (Ministère de l’Environnement et de la Faune), 2014 QCTAQ 02892.

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