Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650, 2004 SCC 48, 2004 SCC 48 (2004)

Docket Number:29507

Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine

(Village), [2004] 2 S.C.R. 650, 2004 SCC 48

Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine,

Roberto Biagioni and Denis Léveillé Appellants v.

Municipality of the village of Lafontaine, Harold Larente and Attorney General of Quebec Respondents and

Seventh-Day Adventist Church in Canada, Evangelical

Fellowship of Canada and Canadian Civil Liberties Association Interveners

Indexed as: Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village)

Neutral citation: 2004 SCC 48.

File No.: 29507.

2004: January 19; 2004: June 30.

Present: McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish JJ.

on appeal from the court of appeal for quebec

Municipal law - Procedural fairness - Refusal by municipality to amend zoning by-law to allow religious group to build place of worship on land it purchased - Whether municipality required to provide reasons for its decision.

Constitutional law - Charter of Rights - Freedom of religion - Whether municipality's decision not to amend its zoning by-law to allow religious group to build place of worship on land it purchased infringes freedom of religion - Canadian Charter of Rights and Freedoms, s. 2(a).

The Jehovah's Witnesses were looking for a suitable parcel of land on which to establish a place of worship in the respondent municipality. The zoning by-law allowed places of worship to be built in a regional community use zone. As they felt that no land was available in this zone, the Jehovah's Witnesses made a conditional offer to purchase a lot located in a residential zone and applied for an amendment to the zoning by-law. The amendment was refused on the ground that this would have resulted in an increase in the tax burden for ratepayers. The Jehovah's Witnesses purchased another lot in a commercial use zone and applied twice for a zoning change, but the municipality categorically refused to grant their applications, giving no reasons for its refusal. The Jehovah's Witnesses instituted a proceeding for mandamus, alleging that the municipality's refusal to amend its zoning by-law violated their freedom of religion under s. 2(a) of the Canadian Charter of Rights and Freedoms. They also challenged the constitutionality of the provisions of the Act respecting land use planning and development relating to the process for approving amendments to zoning by-laws by way of referendum, contending that such a public consultation would violate their freedom of religion. The trial judge dismissed the application after finding that lots were still available in the only zone in which places of worship could be built. The Court of Appeal set aside this finding of fact, but the majority dismissed the appeal on the ground that the municipality was not responsible for the unavailability of land and was under no positive obligation to preserve freedom of religion.

Held (Major, Bastarache, LeBel and Deschamps JJ. dissenting): The appeal should be allowed.

Per McLachlin C.J. and Iacobucci, Binnie, Arbour and Fish JJ.: In weighing the merits of the Congregation's rezoning requests, the Municipality was discharging a duty delegated to it by the Legislature. The Municipality was bound to exercise the powers conferred upon it fairly, in good faith and with a view to the public interest. The Municipality did not fulfill its duty of procedural fairness in responding to the second and third rezoning applications brought by the Congregation because the Municipality gave no reasons for its denial.

When making an administrative decision affecting individual rights, privileges or interests, a public body like a municipality is bound by a duty of procedural fairness whose content varies according to five factors. In this case, a review of these factors indicates that the Municipality's duty of procedural fairness to the Congregation was heightened by the aggravated potential for abuse of discretionary statutory authority, the absence of an appeal provision, the expectations established by the Municipality's own conduct in responding to the Congregation's first rezoning application, and the importance of the decision to the Congregation, impacting as it did on the right of the Congregation to practice the religion of its choice. Little deference is due to the Municipality's decisions concerning the second and third applications for rezoning because there is no record to indicate that the Municipality has actually engaged its expertise in evaluating the applications. These factors suggest that the Municipality was required to carefully evaluate the Congregation's applications for a zoning variance and to give reasons for refusing them.

In refusing to justify its decisions, the Municipality breached its duty of procedural fairness. It acted in a manner that was arbitrary and straddled the boundary separating good from bad faith. The matter should be remitted to the Municipality for reconsideration of the Congregation's rezoning application.

Per Bastarache, LeBel and Deschamps JJ. (dissenting): In the absence of a palpable and overriding error, the Court of Appeal could not review the trial judge's finding of fact regarding the availability of a lot. This finding, which was based on an assessment of witnesses' credibility, should be restored and it justifies dismissing the Jehovah's Witnesses' application, since it precludes a conclusion that their freedom of religion was infringed.

Neither the purpose nor the effect of the zoning by-law has been to infringe the freedom of religion of the Jehovah's Witnesses. First, the zoning by-law cannot be considered prohibitive since it does not prohibit the "place of worship" use everywhere within the municipality's boundaries. Second, freedom of religion is a fundamental right that imposes on the state and public authorities, in relation to all religions and citizens, a duty of religious neutrality. For that reason, the municipality is required to structure its by-laws in such a way as to avoid placing unnecessary obstacles in the way of the exercise of religious freedoms, although it does not have to provide the Jehovah's Witnesses with access to a lot that corresponds better to their selection criteria. Furthermore, the rights protected by s. 2(a) of the Charter are not absolute. First, freedom of religion is limited by the rights and freedoms of others. The diversity of opinions and convictions requires mutual tolerance and respect for others. Second, although the very nature of the zoning by-law means that the Jehovah's Witnesses do not have absolute freedom to choose the location of their place of worship, this limit is necessary to protect safety and order, and ensure proper land use, in the municipality and does not constitute a violation of freedom of religion. Finally, churches and their members are not exempted from making any effort, or even sacrifice, inter alia in the exercise of their freedom of worship. Since at least one lot remains available in the regional community use zone, the Jehovah's Witnesses must comply with the municipality's zoning by-law and build their place of worship in the zone where this use is authorized.

If no land were available in the regional community use zone, this would constitute an infringement of freedom of religion under s. 2(a) of the Charter, because the construction of a place of worship, which is an integral part of this freedom, would then be impossible within the boundaries of the municipality. This infringement would result not from the existence of the zoning by-law, but from the refusal to adapt it to evolving community needs. Even though, as a general rule, the Charter does not require the state to take positive steps in support of the exercise of the fundamental freedoms provided for in s. 2(a), and even though the state must refrain from implementing measures that could favour one religion over another, this would be an exceptional situation in which freedom of religion could have no real meaning unless the public authorities took positive action. The municipality would therefore have to amend the by-law.

If there had been a violation of the Charter, the only possible remedy that would have been appropriate was an order to the municipality to review its zoning by-law so as to make land available to the appellants on which they could build their place of worship. It would not have been appropriate to suspend the operation of the Act respecting land use planning and development and its process for approval by way of referendum, as it cannot be assumed that this democratic process, which is consistent with the nature of municipal government in Canada, in any way infringes the freedom of religion guaranteed by s. 2(a) of the Charter.

Concerning the administrative law issue, a more precise and rigorous justification for the municipality's repeated refusals to amend its zoning by-law would not only have given the Jehovah's Witnesses a better understanding of the municipality's decision, it also would have given its decision-making process the required transparency and the appearance of procedural fairness.

Per Major J. (dissenting): There is agreement with the result in the judgment of LeBel J., but reasons restricted to his conclusions on the findings of fact of the trial judge and the absence of any infringement to freedom of religion.

Cases Cited

By McLachlin C.J.

Referred to: Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; Toronto (City) v. Trustees of the Roman Catholic Separate Schools of Toronto,...

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