Court finds power of inspection is limited in the event of litigation

26 July 2019

How does one reconcile the concept of equality of the parties before the court and the guiding principle of fair debate with a party's statutory advantage of being able to obtain information and evidence from its opponent?

Such was the question examined in Ville de Montréal c. Sanimax Lom inc.,[1] wherein the Superior Court had to determine whether a city may, in order to update the evidence it intends to use at trial, exercise its powers of inspection to obtain information and evidence from a person against whom it has already instituted proceedings.

The facts of the case can be summarized as follows: on Oct. 22, 2017, the City of Montréal filed a permanent injunction against Sanimax to force the company to comply with zoning requirements and standards for pollutant releases to air and sanitation works. One week after commencing proceedings, the City requested an inspection of the Sanimax plant to verify its production process and land use against the zoning by-law.

Having never undergone such an inspection since it began operating its plant in Montréal in 1958, Sanimax challenged the request, stating that proceedings pertaining to the same issues had just been filed and that this was inconsistent with the concept of "fair debate" and applicable rules of procedure. Sanimax thus objected to the inspection and refused to collaborate.

Drawing a parallel with the obligation to obtain a search warrant under criminal law, Judge Granosik stated that by commencing court proceedings, the City essentially became bound by the trial process, thus losing the right to inspect to complete its evidence as though acting outside the judicial framework. Judge Granosik wrote that a course of action so fundamentally connected to the litigation at issue must be overseen by the Court and in so doing, affirmed that the state is prohibited from using legislative recourse to "decide" a case to which it is a party. Finding the City's position contrary to the principles of "fair debate" and "balance" of the parties before a court, which require that the notion of "equality" be upheld insofar as these concepts are now codified in the rules of procedure, Judge Granosik stated that given the circumstances, the right of inspection should be tailored and supervised.

In the end, the City was not authorized to follow through with its inspection. To conduct any inspection or visit in connection with the proceedings filed against Sanimax, the City will therefore be forced to act in compliance with the Code of Civil Procedure and obtain prior approval.

This article was coauthored by Patrick Cajvan, a summer law student from the Montréal office.

[1] Sanimax was counseled by Francine Martel and Serge Amar from Gowling WLG (Canada) LLP

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