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PUBLIC UTILITIES - Facilities - Construction - Easements and rights of way - Electricity - Transmission lines

Friday, November 13, 2020 @ 1:29 PM  

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Appeal by Hydro-Québec from a judgment of the Quebec Court of Appeal that set aside the injunction granted in its favour. Hydro-Québec had servitudes, established in the 1970s by expropriation, for its Jacques-Cartier-Duvernay electrical transmission line. The land along that line included lots belonging to the respondent owners. Agreements between Hydro-Québec and the respondents’ predecessors in title limited the number of lines authorized on the servient land to three. In the 1980s, the Jacques-Cartier-Duvernay line was reconfigured without notice to the respondents. No changes were made to the existing infrastructure. Hydro-Québec wished to construct a new line, the Chamouchouane-Bout-de-l’Ile line, along the same corridor where it already had servitudes. The respondents denied access to Hydro-Québec’s employees who attended at the lots in order to conduct surveying and clearing work. Hydro-Québec applied for an injunction. In their cross-application, the respondents sought damages for unauthorized use of the servitudes following the reconfiguration of the Jacques-Cartier-Duvernay line. The parties agreed to split the proceeding and have the cross-application postponed. The trial judge granted the injunction and dismissed the cross-application. The Court of Appeal allowed the respondents’ appeal. It found that Hydro-Québec could not rely on its existing servitudes for construction of the new line. It further found Hydro-Québec was authorized to acquire, by expropriation, new servitudes on the respondents’ lots pursuant to Order in Council 720-2016.

HELD: Appeal allowed. The Court of Appeal erred by substituting its own opinion for that of the trial judge regarding a question of fact in reaching a conclusion that was clearly contrary to the evidence. It compromised the fairness of the proceeding by drawing conclusions regarding the application of Order in Council 720-2016, of which it took judicial notice after the hearing without notifying the parties. The Court of Appeal erred in interfering with the trial judge’s conclusion that the post-expropriation agreements were servitude agreements. Neither the law nor public order barred Hydro-Québec and the respondents’ predecessors in title from clarifying or modifying the servitude, acquired by expropriation, by mutual agreement. It was presumed the servitude agreements, entered into after the notice of expropriation, contained a more faithful definition of the scope and terms for the exercise of the servitude than the notice of expropriation. The power line servitudes in favour of Hydro-Québec were not limited to the Jacques-Cartier-Duvernay line. The servitudes authorized Hydro-Québec to construct the Chamouchouane-Bout-de-l’Ile line through the respondents’ lots. The right to operate electrical transmission lines clearly included the right to make modifications such as the one made in the early 1980s. Hydro-Québec’s proceedings were not abusive. The cross-application was remanded to the Superior Court for hearing.

Hydro-Québec v. Matta, [2020] S.C.J. No. 37, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown and S.L. Martin JJ., November 13, 2020. Digest No. TLD-November92020011-SCC