Canada: Time Limit For Contesting A Monetary Administrative Penalty In Quebec Not A Strict Time Limit

On March 30, 2015, the Administrative Tribunal of Quebec (the Tribunal) ruled¹ on the refusal of the Bureau de réexamen des sanctions administratives pécuniaires (the office responsible for reviewing monetary administrative penalties) of Quebec's Ministry of Sustainable Development, Environment and the Fight Against Climate Change to extend the time limit for applying for a review of a decision to impose a monetary administrative penalty (MAP) beyond the prescribed period of 30 days.

Strict or not strict

The Bureau de réexamen des sanctions administratives pécuniaires found the 30-day time limit set out in Section 115.17 of the Environment Quality Act² to be a strict time limit and determined that counsel for the applicant had not demonstrated an inability to act.

The Tribunal began by pointing out that a strict time limit entailing forfeiture of the remedy must be expressly provided for in the law because it is not presumed. The possibility of extending a strict time limit must also be set out in clear and express terms in the law. If these conditions are not satisfied, such a time limit cannot be deemed a strict time limit.

It is not possible to conclude from an analysis of the provisions of the Environment Quality Act that deal with applying for a review of a decision to impose a MAP that the time limit imposed for making such an application is a strict time limit. Moreover, the Tribunal noted that the 60-day time limit for contesting the Bureau de réexamen's decision before the Tribunal is not a strict time limit, and a person who fails to act within that time has only to demonstrate that it was unable, for valid reasons, to act sooner. The Tribunal may then agree to relieve the person from failure to act within the prescribed time if it considers that no other party suffers serious harm as a result.³

The Tribunal also noted that the Bureau de réexamen is required to comply with the provisions of the Act respecting administrative justice. Consequently, the procedures followed by the Bureau de réexamen must be conducted "in keeping with the duty to act fairly"⁴ and "according to simple and flexible rules devoid of formalism."⁵

Lastly, the Tribunal pointed out that according to the answer to the question on the ministry's website concerning the time limit for making an application for review, a mailing time of seven days is taken into account as of the date of the notice of claim. For the Tribunal, the fact that the start of the time limit cannot be established with certainty also lends strength to the argument that the time limit is not strict.

Test to be applied in assessing applications for an extension

After establishing that the 30-day time limit for applying to have the imposition of a MAP reviewed is not a strict time limit, the Tribunal ruled on the test to be applied by the Bureau de réexamen when it receives an application for an extension.

The Tribunal remarked in passing that the various documents available on the ministry's website were not useful for determining which test is applied by the Bureau de réexamen because the website states that the citizen must demonstrate serious reasons or reasons beyond the citizen's control when, in actual fact, the test applied by the Bureau de réexamen is the "inability to act" test.

Based on the test that it must itself apply, the Tribunal stated that the Bureau de réexamen is required to apply the "valid reason" test, if no other party suffers harm from doing so, in assessing applications for an extension.

Applying the test in the case at issue

In the case submitted to the Tribunal, the time limit for filing an application for review was estimated to have been exceeded by between 13 and 20 days as the MAP mailing and notification dates had not been established. Also, 11 days were attributable to a request for access made to the ministry to obtain documents relating to the application for review.

The Tribunal did not consider a delay of less than 20 days excessive, especially given that the citizen took various actions in the days following receipt of the MAP. Also, the Tribunal maintained that the ministry would not suffer from an extension of the time limit whereas the citizen would be deprived of any recourse in respect of the MAP if an extension was not granted.

The Tribunal therefore overturned the Bureau de réexamen's decision, extended the time limit for applying for a review of the decision to impose the MAP and returned the case to the Bureau de réexamen so the latter could review the MAP.

Conclusion

Without mentioning it, this decision by the Tribunal sets aside a previous decision in which the Tribunal had adopted the "inability to act" test in the context of an application for review.⁶ However, it is our opinion that this decision, by adopting the "valid reason not causing serious harm to other parties" test, is well-founded because it is consistent with the principles of the Act respecting administrative justice and the test that the Tribunal is itself required to apply when a party fails to act within the time prescribed by law.

Moreover, the Tribunal had previously recognized the absence of formalism that was to take precedence in assessing applications for review in respect of MAPs by accepting that an email could constitute sufficient notice of contestation under Section 115.17 of the Environment Quality Act, making it unnecessary to use the application for review form on the ministry's website.⁷

Lastly, we are of the opinion that, as a result of this decision, the Bureau de réexamen will likely show more flexibility in assessing applications for an extension in order to, among other things, enable citizens to obtain, through a request for access, relevant documents so they can present their observations in support of applications for review. This flexibility is all the more justified because the ministry does not suffer any harm from granting an extension as it takes several months for the Bureau de réexamen to issue a review decision.⁸

Footnotes

1 Recyclage Sainte-Adèle inc. c Ministère du Développement durable, de l'Environnement et de la Lutte contre les changements climatiques, 2015 QCTAQ 03862

2 CQLR, c Q-2. "The person or municipality may apply in writing for a review of the decision within 30 days after being notified of the notice of claim."

3 Section 106 of the Act respecting administrative justice, CQLR, c J-3

4 Ibid, section 2.

5 Ibid, section 4 (1).

6 9095-0627 Québec inc. c Ministère du Développement durable, de l'Environnement, de la Faune et des Parcs, 2014 QCTAQ 05244

7 Serge Mosite Amzallag c Ministère du Développement durable, de l'Environnement et de la Lutte contre les changements climatiques, 2014 QCTAQ 0996

8 The ministry's website states that approximately six months may elapse between the time a case is completed and the time a written decision from the Bureau de réexamen is received. (in French only)

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