Arrondissement du Plateau-Mont-Royal

The citizen co-owns a duplex which has a separate double garage in the backyard. This garage has a garage door and a pedestrian door. The plaintiff has exclusive use of the section with the pedestrian door: he wants to replace it with a garage door in order to park his vehicle inside the garage.

The Borough replies that the new By-law no longer allows the development of parking spaces except underground and under the main building. It denies the requested permit. The OdM investigates:

♦  The Borough does not dispute that this garage and its interior parking space enjoy vested rights.

♦  The Règlement d’urbanisme (article 635) allows the expansion of a derogatory usage up to 100% of the area covered by that usage.

♦  Caselaw and legal doctrine establish clearly that a parking can constitute a principal or an accessory “usage”, depending on the circumstances.

♦  The change requested would not have an adverse impact on the neighbourhood and it is not likely to create a worrisome precedent. This double garage exists and it has been used as a parking space for several years. There is no need to expand its structure.

The OdM RECOMMENDS the issuance of the requested permit, subject to verifications regarding its usage.

The Borough, however, maintains that parking is not a “usage” as defined by its Règlement d’urbanisme, except for commercial parking lots. Therefore, it will not follow through with our RECOMMENDATION.

Arrondissement de Ville-Marie

While redeveloping a park, the Borough carries out works around an adjoining building which was recently transformed: the Borough constructs a retaining wall and sidewalks used as landings, adds a fence and handrail, builds an access in front of a service entrance; etc. The Borough then claims $62,889.61 from the Co-ownership Syndicate.

Annual fees for the permanent occupancy of public land are also billed to the Co-ownership Syndicate for the footing of the building, the overhanging balconies and the sidewalks and landings leading to building entrances.

Amount Billed for the Work

The work carried out around the building is of high quality. However, the Co-ownership Syndicate was not consulted on their extent and design nor on the choice of materials. Following long discussions with the OdM, the Borough finally reduces its claim to $20,000.

Public Land Occupancy Fees

The OdM finds it unfair that the Borough would charge occupancy fees for large areas where work over public land was carried at the Borough’s initiative, beyond what was necessary for the practicality of the building (e.g.: long sidewalks rather than simple landings). Moreover, our research shows that when this building was constructed, foundation footings could encroach up to 12 inches on public land, free of charge.

After prolonged discussions, the Borough agrees to reduce the surface billed for public land occupancy. On the other hand, a recent survey plan shows that the foundation footing does not encroach on public land.

As a result, the annual public land occupancy fees are reduced by about $1,000 each year starting in 2017. Reimbursements for the overpayments of previous years will be forwarded to the Co-ownership Syndicate: these amounts are being calculated. The OdM will follow up.

Arrondissement d’Outremont

In a Heritage sector, major exterior work is done on a property, including earthmoving work. Complaints file with the OdM claim that these works have serious adverse effects on neighbouring properties.

Following a thorough analysis, our office identifies 10 issues in dispute: we submit them to the Borough.

This investigation proves to be difficult. The cooperation of the Division des permis et des inspections and of the Direction de l’aménagement urbain et du patrimoine is far from certain. Many meetings, follow-up calls and emails are needed in order to obtain the information we asked for and the Borough’s explanation of the decisions made in this file. Yet, the By-law Concerning the Ombudsman and the Cities and Towns Act clearly provides that municipal employees must cooperate with the Ombudsman’s inquiries. It is truly exceptional for our office to issue such comments.

Consequently, about 18 months have elapsed between the launch and the end of this investigation. Our main conclusions are as follows:

♦  Given their size, the new elements that were built have a significant visual impact on the heritage landscape of the street as well as on the neighbouring properties, including one which is classified as a Quite remarkable – Category 1 building.

♦  The Certificat d’autorisation de terrassement authorized major changes to what had been approved by the Borough Council in 2014 (PIIA approval), in this Heritage sector. It is our view that a new PIIA approval should have been obtained.

♦  It is also the OdM’s view that the Division des permis et des inspections overstepped its powers when it approved significant changes to the initial concept for the garage, with a simple Certificat d’autorisation de terrassement.

♦  We noted that following a visit, a Borough Inspector had noticed that the new retaining walls (in front) were different from what was shown on the Plans de terrassement: he had, therefore, issued a Cease-Work Order. This Cease-Work Order was later cancelled by the Division Manager.

♦  Some walls were built in the setback margin: they are non-compliant.

♦  Other low walls intrude illegally on public land: they are also not compliant. The Borough committed to demanding the demolition of these walls: they have yet to be demolished.

♦  We also found that the Borough does not apply to all, in a fair and consistent manner, the rules governing the PIIA approvals, the minor exemptions, the developments in setback margins and the required permits.

8 RECOMMENDATIONS were issued in the wake of this investigation: you will find them, as well as the results achieved to date, on page 32 of OdM‘s 2018 Annual Report.

Arrondissement de Mercier–Hochelaga-Maisonneuve

The Borough issued a Transformation Permit to the co-owner of a building authorizing him to install a commercial exhaust hood with fan equipment in a common area with restricted use reserved exclusively to the other co-owner. The latter complains to the OdM.

The permit holder later declares bankruptcy. The hood is removed by his successor: the complainant is no longer aggrieved by the situation. Nonetheless, the OdM is concerned by some aspects regarding the processing of this Permit Application:

♦  The work concerned clearly affected a common area in the building.

♦  Prior to the issuance of the permit, the plaintiff had advised the Borough that she was the only other co-owner of the building and that she was opposed to this installation.

♦  The Résolution de l’assemblée des copropriétaires filed in support of the Permit Application should have raised questions on its face: it is stated therein that the permit applicant was the only co-owner present at the meeting and also, that the Co-ownership Agreement requires the attendance of three-quarters of members in order to have quorum.

♦  Nonetheless, the permit was issued to the applicant.

Our office plans to inquire with the Borough in 2019 to determine whether additional verifications could or should be conducted by the Borough when considering a Permit Application regarding a divided co-ownership property.

Arrondissement du Plateau-Mont-Royal

A co-owner residing on the second floor of a duplex wishes to expand her dwelling by adding a third floor and roof terrace.

The regulation allows for third floors in this area. However, the project is subject to a qualitative review under the Règlement sur les plans d’implantation et d’intégration architecturale (PIIA). The Borough opens a file – Demande de permis de transformation.

The citizen’s plans provide for a third floor with a surface equivalent to 88% of the second floor. The Borough and the Urban Planning Advisory Committee (Comité consultatif d’urbanisme (CCU)) deem the project to be non-compliant with the PIIA due to its significant risk of visual and shading impact. The Borough demands that the depth of the third floor be decreased and aligned to the adjacent building: the third floor surface setup would then be 60% relative to the second floor.

Our Intervention

In this type of situation, our office always attempts to bring the parties to a common ground before proceeding to in-depth file analysis. This is what we did.

• The citizen agrees to review her initial project.

• The Borough confirms its willingness to consider alternative propositions to address the required configuration.

• The citizen suggests two new configurations: one with a surface setup of 80%, the other with a surface setup of approximately 73%.

• The Borough rejects the two alternative propositions. It then indicates that the only acceptable configuration is the one that was originally requested (60%).

The citizen is subsequently notified that her initial project will be submitted for decision at the next Borough Council assembly. This project standing no chance to ever being approved, we obtain from the Borough to not submit it immediately. We then proceed to examine the complaint in depth.

At the end of our enquiry, we view the Borough’s approach as being problematic. The Borough declines our invitation to meet with us to discuss our findings. The OdM issues the following Recommendations:

« La Ville déclare régulièrement que le rôle des services responsables de la délivrance de permis est de venir en appui aux citoyens et de les accompagner dans leurs démarches destinées à améliorer leur projet, pour le rendre conforme à la règlementation et au PIIA.

(…)

Pour tous ces motifs, l’Ombudsman de Montréal Recommande à l’arrondissement du Plateau-Mont-Royal :

De ne pas soumettre le projet initial d’agrandissement (configuration B) au Conseil d’arrondissement pour décision, puisque la citoyenne ne souhaite plus cette configuration; et

De poursuivre ses discussions avec la citoyenne ainsi qu’avec ses architectes, concernant la recherche d’une configuration alternative conforme aux exigences du PIIA, et tenant compte des préférences raisonnables de la citoyenne. »

The second Recommendation is rejected.

Our power strictly lies in issuing Recommendations: they are almost always accepted and implemented by the City administration.  Unfortunately, this was not the case for the current file.

Our office does not have the authority to impose its findings to the City administration. This file has therefore been closed.

Arrondissement du Plateau-Mont-Royal

The Borough asks a citizen to replace the exterior door of his workshop he installed less than a year ago: it would not comply with the approved plans. The citizen claims that the installed door had been approved by a Borough employee.

After conducting a lengthy and complex enquiry, we retain the following:

• Several documents corroborate the citizen’s allegation.

• The Borough acknowledges that an agreement had been reached to change the door initially authorized, but it cannot provide the details of the agreement.

• The Borough had performed several inspections to verify compliance of the work: no issue regarding the installed door had been raised at that time.

• In fact, this Permit-related file had been closed.

• About six months later, this citizen had solicited our intervention regarding a different question: we intervened with the Borough.

• Shortly after, the Borough reopened the Permit file and requested that the door be replaced.

In view of the overall elements, we believe that the citizen’s testimony prevails. We ask the Borough to allow the citizen to regularize his door by applying for a Permit that would be granted without any further ado, a procedure often privileged by the Borough.

The OdM issues a Recommendation in this respect. It is unfortunately denied.

Arrondissement de Saint-Laurent

A citizen wants to install an exterior commercial sign promoting her daycare centre. The Borough issues an Authorization Certificate (Certificat d’autorisation), but not for the requested location.

The citizen claims that installing the sign at the location required by the Borough (on a lateral wall at the back of a yard) does not make it visible from the street. Our enquiry confirms this. We intervene in order to find a solution.

The applicable regulation provides that a sign must be installed on the façade of a building. The Borough recognizes that the lateral wall at the back of a yard is a façade within the meaning of the regulation.

The regulation provides that businesses whose storefront is not on a street can install a sign by the main entrance. In view of this building’s configuration, this option is, however, not feasible. We explore other alternatives with the Borough.

A location is finally identified that is satisfactory to the citizen, the building owner and the Borough. The citizen obtains her Permit as well as information on the material and other requirements needed for making the sign.

The Borough acknowledges that the actual rules are complex and hard to enforce at times: it plans on reviewing them.

Arrondissement de Ville-Marie

A condo unit owner requests a renovation permit for his basement unit in order to sell it as a housing unit. Up until then, the owner had used this unit as a company office. The Syndicate of co-owners adopted a resolution authorizing the renovation work in this private portion of the building.

In order to issue the permit, the Borough requires the installation of two storage rooms for waste and recyclable material in common areas located in the building’s basement, based on its Règlement sur le civisme, le respect et la propreté.

The Borough thus issues to the co-owner a permit authorizing him to renovate his private portion and the common areas. The Syndicate of co-owners had not been consulted and disagrees with this requirement. It turns to our office.

Our site visit confirms that the building’s configuration would make it very difficult to accommodate the requested storage rooms and that their access would be very cumbersome to eventual users.

According to the OdM, the regulatory provisions could be reasonably interpreted in such a way that the requirement for garbage storage rooms not be applied to this file. The Borough does not accept this argument.

We nevertheless agree to a solution that will consider the issue’s particular context and be acceptable to all parties involved. The renovation of the private unit is authorized without the requirement for garbage storage rooms.

Comment regarding the management of permit applications involving condominiums

We receive an increasing number of complaints criticizing Boroughs for having authorized works in a condo’s common areas without prior consent from the Syndicate of co-owners, or authorizing works in a portion reserved for exclusive use without the consent of the owner who benefits from this sole use. We are concerned about this situation!

Arrondissement de Rivière-des-Prairies–Pointe-aux-Trembles

Eight years after completing construction of their house, the plaintiffs are informed that their front yard landscaping is not compliant and must be modified (driveway entrance too long, paved parking space on the front yard and insufficient greenery).

Our enquiry reveals that, at the time the house was built, the landscaping was not compliant with the regulation’s requirements. The Borough grants a reasonable extension for the citizens to perform the required modifications.

We are, however, surprised over the lengthy delays (8 years after completion of the work) before the Borough conducts a final inspection in order to close the permit-related file. Some corrective measures have already been implemented: we invite the Borough to continue improving its follow-up and turnaround times.

Arrondissement de Rivière-des-Prairies–Pointe-aux-Trembles

The Borough threatens to tear down a house under construction that is yet to be completed. The construction permit has expired: the Borough refuses to extend it or to issue a new one.

Our enquiry reveals that the citizen is performing the work himself, which explains the lengthy delays. Although the building is not completed, it is not run-down. In view of the work progress, we believe that it would be inappropriate to have the building demolished.

The Borough agrees to suspend its actions and grants the citizen additional extensions in order for him to complete the building’s exterior.

One year after our intervention, the work has progressed considerably, but the exterior is not entirely completed. For this reason, we opt to withdraw from the case. We explain to the citizen that he is subject to penalties if he does not quickly bring his project to completion. However, the Borough commits not to initiate proceedings to demolish.

The citizens are the owners and have lived in their “shoebox” type residence for approximately 20 years.  Their roof is in a bad condition and they must quickly redo all of their roof structure.  They want to take this opportunity to enlarge their residence by adding a second floor.  They file a permit application with the Borough, in February 2015.

The project is submitted to the Urban Planning Committee (Comité consultatif d’urbanisme (CCU)) on August 12, 2015.  The project is supported by a favourable recommendation from the Direction du développement du territoire et des études techniques (DDTET) of the Borough.

Nonetheless, the CCU issues an unfavourable recommendation, suggesting to the Borough Council to reject this project.  According to the CCU, the project would not emphasize the original building (shoebox) and would not retain its trace.  The CCU does not mention that the owners plan to keep the existing façade.  The CCU notes, however, the Borough’s desire to preserve “boom town” and “shoebox” type buildings; it also recommends that the DDTET should make an inventory of these types of buildings and elaborate more specific criteria to ensure their enhancement.

Based on information from the CCU, the Borough administration later informs the citizens that if they added a second floor, set back from the façade and with a contemporary flavour, the project would likely receive positive comments.  The administration cannot, however, specify what type of setback would be acceptable to the CCU.

The citizens contact the OdM.

They explain that a setback second floor would make them lose a lot of space and would not integrate seamlessly to the existing building.   Moreover, they do not want a project with a contemporary flavour.  They insist that their project, as submitted, provides for the preservation or renewal of many original architectural elements in the treatment of the façade, and thus satisfies the criteria and objectives of the Plan d’implantation et d’intégration architecturale (PIIA).

The OdM does not have jurisdiction over decisions made by a CCU or a Borough Council.  It can nonetheless communicate preliminary information or comments to them.

In the present instance, the OdM felt it was appropriate to inform the members of the Borough Council of some facts we had gathered in the course of our investigation; the whole with a view to contribute to their global understanding of the situation, when asked to take position on this project.  The following elements were submitted:

• The building is not designated as a “significant building”.
• It is located in an area where the heights for constructions authorized by the Règlement d’urbanisme are 2–2, i.e. minimum two floors, maximum two floors.
• The Borough’s PIIA allows the addition of volume on existing buildings as long as it highlights “the original architectural characteristics of the building, and more specifically the crown, including through a substantial set back from the façade or by the reinstatement of some of the original architectural characteristics”. (our translation and emphasis) 
• The Regulation, therefore, seems to offer a choice to citizens regarding the way through which they will emphasize the architectural characteristics of their building.
• Notwithstanding the discretionary power of the Borough Council, when appreciating a project in light of the PIIA, such exercise cannot have the effect of voiding rules found in the Regulation.
• The provisions of the PIIA must not be used to indirectly impose a norm which is not provided for in the Regulation.If the Borough wishes to prohibit or limit the addition of a second floor on “shoebox” or “boom town” constructions, as reported by the media, it should modify its Règlement d’urbanisme so as to make the rule clear.
• The OdM is also concerned by the long processing time of this file, especially in a context where the structure of the roof of this building is weakened.
• The OdM finally reminds the Borough Council that the Borough’s DDTET had issued a favourable Recommendation for this project.

On October 5, 2015, the Borough Council approves the project, with a majority vote.  The citizens are able to obtain their permit quickly.

For many years, a citizen had been trying to resolve a problem with recurring floods in his and his adjoining neighbour’s basements.  These floods were due to the ineffectiveness of the municipal system which is unable to collect the water accumulating in the street, during heavy rains.

Temporary measures had been implemented by the City to address the problem, but the citizen is still waiting for a permanent solution.  He contacts our office.

Following our investigation and discussions, all parties agree that the ideal durable solution is to backfill the slope entrances of both properties, so that the street water can no longer flow towards their basements.

The cost of such work is significant and the owners do not want to have to pay for them.

After many long discussions, including some between the lawyers of the citizens and of the City, an agreement is reached on the financial compensation the City would pay the two owners in order for them to conduct the required work, to prevent such floods. This agreement is later ratified by Ville de Montréal Executive Committee.

The plaintiffs own an ancestral house, in Arrondissement d’Ahuntsic-Cartierville.  The Borough was requesting that they replace the entire sewer pipe connecting their residence to the public sewer, within 60 days.  If they failed to do so, they could receive a fine of at least $100 for each day of the violation.

The regulations provide that the repair and maintenance of residential sewer pipes are incumbent to the owners only, all the way to the public sewer.  The plaintiffs, therefore, had to incur alone the entire cost of these works.

Over the years and with the development of their neighbourhood, this ancestral property found itself landlocked at the end of a public alley, way back from the street.  Almost all of the pipe section to replace is under this public alley, over a distance of approximately 225 feet.  The estimated cost of the work is $50,000 or more.

The citizens did not understand why the Borough insisted that this work be conducted within 60 days when, according to them and to their plumber, the repair work of their pipe was not urgent.

Moreover, at the time, Ville de Montréal’s Commission permanente sur l’eau, l’environnement, le développement durable et les grands parcs was studying possible amendments to the current regulation, namely as to who should assume the costs of this type of work, under the public domain.

As a first step, we got the Borough to put this file on hold, including its request that the work be executed within 60 days.  We then discussed with the elected officials involved in the project of amendments.

In the months that followed, the City confirmed its intention to take responsibility for the maintenance and repair of sewer pipes located under the public domain, on all its territory.  The new Règlement relatif à l’entretien des branchements d’égout (15-085) came into force on November 30, 2015.  Since then, it is the City who carries out the repairs and replacements of sewer sections located under the public domain, at its own cost, subject to certain conditions, namely:  the failure must not be the result of an improper or abnormal use of the sewer line or of work done on the private property.

As a result, our plaintiffs could file an application asking the City to take charge of the above-mentioned work, in accordance with the new regulation.

In 2003, a citizen bought a land which the City was selling for unpaid taxes. He later realized that this land had numerous zoning restrictions as well as public utility easements on it.  For more than ten years, he tried to find ways which would allow him to develop this land, but to no avail.  He finally asked for our intervention.

From the start, we informed the citizen that we would not question the sale of this land, ten+ years before:  our Bylaw provides that we cannot investigate situations that have been known to plaintiffs, for more than one year.  We focused, therefore, on the search of solutions and on obtaining clear answers to the plaintiff’s questions.

Our investigation confirmed the facts reported by the plaintiff.  The many regulatory restrictions and constraints linked to easements encumbering this lot do prevent any development project.

Following our discussions, the City accepted to buy back the land for the 2003 price of purchase, plus interests and certain fees.  We found this to be a reasonable approach.

The citizen, however, is not satisfied with this offer.  He responded with counter-offers which we find unreasonable.  In light of this situation, we put an end to our intervention.  Discussions would still be under way between the citizen and Ville de Montréal.

An owner in Arrondissement de Saint-Laurent is complaining about receiving contradictory information on the requirements to be met for his home expansion project to be approved.  We organized a meeting between the plaintiff, our office and the Borough.  Each of the problematic elements was clearly explained to the citizen, including the changes that had to be made to the plans that he had submitted.  These were modified accordingly:  the permit was issued and the work could finally be carried out.

Due to a garret, in Arrondissement de Mercier – Hochelaga-Maisonneuve, that was deemed dangerous, the Borough put up a security perimeter in the street, around the building.  It then issued a bill of over $12,500 to the citizen, for public domain occupancy fees, hours worked by municipal employees (salaries and benefits), professional fees for the hiring of a private engineer by the Borough and other administrative fees.

We asked the Borough to specify the regulations and policies on the basis of which these amounts had been billed to the citizen.

During our investigation, the Borough informed us that according to its usual procedures, the costs for public domain occupancy should have been significantly less than the amounts that had been charged.  The Borough notified the Service des finances accordingly and asked that a corrected bill be issued.

While we were pursuing our inquiries to validate the other amounts billed, we were informed that the City had filed legal suit in recovery of the initial amount of more than $12,500.  The Court of law having being seized with the file, our office had to withdraw.

For nine years, a citizen of Arrondissement Le Plateau-Mont-Royal had been requesting for the City to redo the asphalt that had been damaged on the border of his property, during snow removal operations.  Following our interventions and follow-ups, the repair work was carried out by the Borough.

Co-owners in Arrondissement Le Plateau-Mont-Royal submit that their project should not be subject to the new “park fees” prescribed in a new By-law that was adopted after the filing of their permit application.  Their request had been filed after the issuance of a Notice of motion announcing the new By-law which had the effect of suspending all permit issuances for a period of two months.  However, the new By-law was not adopted within the two months following the Notice of motion.  After analysis of the law and review of the caselaw, we expressed the opinion that, after the two-month period, the “freeze” had ceased to be in effect and the permit should have been issued.  Following our Recommendation, the Borough issued the permit, without imposing the new “park fees”.

With a view to ensure fairness to all its citizens, the Borough informed us that it would take the same approach and not charge the new “park fees” in other similar files which we had not investigated. Such an initiative merits recognition!

A citizen of Arrondissement Le Plateau-Mont-Royal buys a duplex with the intention of transforming it into a single family residence.  Before finalizing the transaction, he had made sure to get the permits required for this major transformation.  During the work, however, his contractor removes elements of the roof and floor which were not initially planned to be demolished.  This considerably increases the portion of the building that is destroyed.  The project is no longer true to the Renovation permit that had been issued.

The Borough orders that the work be immediately stopped and informs the citizen that he will need to obtain a Demolition permit and a New construction permit which will require the approval of the Comité consultatif d’urbanisme (CCU).  A Statement of offence of $50,000 is also issued to the citizen.  Moreover, as a “new construction”, this single family residence project does not meet the regulatory requirement for all new constructions to have two dwellings.  The citizen, therefore, will need to have it approved as a “particular project”.  The Borough also plans to charge “park fees” of approximately $25,000 applicable to new constructions.  Besides the foreseen long delays, the citizen worries about the significant additional costs that he must undertake.  He contacts our office.

The unforeseen demolition work that the contractor proceeded to has indeed changed the nature of the project.  The Borough’s order to cease work was, therefore reasonable and justified.

Nonetheless, the Borough recognizes the citizen’s good faith and accepts to support and guide him through his efforts to have his single family residence project authorized.  The permits are finally issued and the work can resume in the summer of 2014.

The Borough also accepted our arguments regarding the inapplicability of the provisions regarding “park fees”, given the specific nature of this project.  These costs (about $25,000), therefore, were not billed to the citizen.

As for the $50,000 fine, we invited the Borough to reconsider its position: this aspect of the file is unfortunately not settled.

The owner of a residential building applied to Arrondissement de Ville-Marie for a permit authorizing the replacement of the thirty-nine (39) windows of her building.

In her request, she planned to replace the fourteen (14) third floor windows by architectural windows composed of a single sash window topped by an arc shaped transom (small independent window): for this project, the same window openings would be kept as well as the same arc shape.

For patrimony preservation purposes, the Borough generally requires that replacement windows reproduce the “characteristics of origin”. On the basis of this principle, the Borough’s architect had concluded that the third floor windows should be replaced by single sash windows without a transom.

The planning advisory committee issued a favourable conclusion towards the project, but with the condition that the third floor windows be replaced by the type of windows suggested by the Borough’s architect.

This requirement would have increased the cost of the project to approximately $97 000 in comparison to $50 000, for the project submitted by the owner.

The owner argued that there are many windows with transoms in her neighbourhood, including on historical buildings, and in Old Montréal. She did not understand, therefore, why her project had been refused.

In this specific file, the Borough had determined the original shape and appearance of the building’s windows based on a drawing published in La Presse, in 1906, which presented the original design of the proposed façade of this building. In reality, however, the building was not built exactly according to this design. The Borough also produced pictures of buildings with arched windows without a transom, on its territory.

On the other hand, our office identified several buildings whose windows had arc shaped transoms on the Borough’s territory; we also found, in another area of Montréal, a building from the same architect with windows surmounted by a transom.

The Ombudsman de Montréal is very supportive of the City’s efforts to preserve the built patrimony. However, in the present file, there was no clear evidence that the windows required by the Borough’s architect corresponded to the building’s original windows. The major financial impact of this requirement was also taken into consideration.

After discussions with the Borough, the permit was issued on the basis of the plans submitted by the owner. This file was officially resolved in early 2014, when we obtained the final confirmation from the Borough, but all the investigative work was done in 2013.

The City plans to transfer a municipal alley to all of its bordering residents (half of them owning property fronting street X and, the other half, on street Y).

A citizen deemed the situation unfair because, according to him, this alley had been formed from pieces of land that used to belong to owners of street X, who had been forced to transfer them to the City, in 1965: in his opinion, therefore, all the alley should only be offered to the owners of street X.

Our investigation showed that the City had acquired these lots before any residential land was sold to citizens, to build their homes. Over time, owners had encroached on this alley with different installations or constructions, but these encroachments were illegal and did not confer any ownership or acquired right.

Thus, the OdM concluded that the City could apply its usual procedure for alley transfers as provided in Addendum C of the Charter of Ville de Montréal, i.e., offering the alley to all the bordering owners, in equity.

In 2012, our office intervened with the Direction des stratégies et transactions immobilières in order to settle a situation of an enclosed lot located between many lands, two of which belonging to the City. Originally, this private lot was to become accessible through a municipal street, which will finally not be developed due to the recent construction of Highway 25 nearby. As construction is not permitted on an enclosed lot, it becomes very difficult to sell it. There were other lots in a similar situation, in this area.

After analysis, we concluded that the problem of these lands could be solved through their annexion to adjoining lands located on a street. We also found that the City had an incentive to resolve these situations because it itself owned many buildable lots which could not be sold, as long as the problem of the enclosed lots located behind was not resolved.

The City has agreed to facilitate the necessary real estate transactions, in this area, case by case. Discussions were initiated with the owners of the enclosed lots and of neighbouring ones who could be interested in expanding their property. Our plaintiff’s file is evolving well.

Our office is satisfied with current developments. We will follow up in our next annual report.

Occasionally, municipal alleys can be transferred or sold to owners of bordering properties, under certain conditions. This is done either through a “transfer of property” under the provisions of Addendum C of the Charter of Ville de Montréal or through a “mutual sale agreement”.

Having handled many citizen complaints relating to such files, we noted that the rules and parameters applied were not always the same, on the City territory. In one instance, the entire transaction was even handled by the borough itself, under its own specific criteria, and not by the relevant central department which is normally responsible to manage these files. That generated some concerns.

We intervened in order to have a more uniform approach and set of rules, so as to ensure more fair and equitable results, for all of the citizens of Montréal.

We worked with the Direction des stratégies et des transactions immobilières who normally handles these types of transactions: a new administrative Guideline was drafted to specify the parameters and values to be respected, in all cases of transfer of property of an alley, under Addendum C. This Guideline should be approved by the Executive Committee in early 2011.

A similar Guideline will then be prepared, in 2011, to govern “mutual sale agreements” of municipal alleys, according to the same values and principles.

We also received confirmation that all of Montréal’s boroughs now entrust the management of such transactions to the Direction des stratégies et des transactions immobilières.

As part of another investigation, we found out that an alley was illegally occupied by neighbouring owners.

We know from experience that in many places, within Ville de Montréal, residents have installed sheds, fences, etc. in public alleys located behind their residence, without authorization.

If such an illegal occupation of the alley causes no functional or potential problems to the City, our office can intervene to ask the Service de la mise en valeur du territoire et du patrimoine to regularize the situation, by transferring to citizens the illegally occupied piece of land, under certain conditions, so that citizens no longer risk to have to vacate this land.

Sometimes, however, functional public utilities infrastructures are located underneath these alleys and, therefore, the presence of private installations limiting access to the premises may create a real problem. In the occurrence of a breach in the infrastructures, such as a water pipe, the illegal installations encroaching on the alley can prejudice the City’s interventions and delay the repairs of the breach: many citizens are, therefore, at risk of suffering more important damages, due to these delays. When facing such a situation, the Ombudsman normally intervenes with the concerned borough in order to request that they take proper action to put an end to these encroachments.

In the present case, there were no infrastructures underneath: the Ombudsman de Montréal contacted the Direction des stratégies et transactions immobilières of the Service de la mise en valeur du territoire et du patrimoine who initiated the ownership transfer process of the alley, to residents.

We will follow up in 2009.

A citizen complained to the Ombudsman de Montréal so the City resume the cleaning and clearing of catch basins located in his alley. These catch basins were blocked and, at the dawn of the strong autumn rains, the bordering residents feared their overflow and damages to their basements.

These catch basins had always been maintained by Ville de Montréal but Arrondissement Le Plateau-Mont-Royal had stopped doing this, after realizing they were located in a private alley.

Our investigation showed that these catch basins had been built by the City, that they are connected to the municipal network of sewer and that they had always been cleaned by the City.

Under the circumstances, the Ombudsman came to the conclusion that the borough’s decision was not fair and, moreover, that is was likely to engage the liability of Ville de Montréal if, by overflowing, their water damaged the properties of the bordering citizens. For the Ombudsman, the fact that these basins had been built by the City who had maintained them afterwards overrided the fact that they were located in a private alley.

Following her intervention, the borough accepted to resume the regular maintenance of the said catch basins and it quickly “unblocked” them. The citizen was greatly relieved.

In 2005, the Ombudsman de Montréal had handled a complaint from a citizen who wanted to force Arrondissement de Rivière-des-Prairies – Pointe-aux-Trembles (actual name of the borough) to sell parts of a municipal alley to the bordering citizens. Most of these bordering citizens were illegally encroaching in this alley and had done so, for many years: these encroachments have begun, however, after the City had clearly refused to sell parts of the alley to these citizens.

Following a long investigation, the Ombudsman de Montréal had concluded that these encroachments, with sheds and fences, created a serious problem for the City because the sewage system linked to the bordering houses was located under the said alley and was in a pitiful state. In the event of a breach, the presence of the illegal structures could prevent the City from intervening swiftly. In light of these circumstances, the Ombudsman de Montréal had Recommended to the borough to take appropriate action so as to put an end to these illegal encroachments.

In early 2006, another citizen from the same alley complained to the Ombudsman de Montréal because the sheds and fences still in place were depriving him from access to his backyard, from the alley. The citizen was also worried for security reasons (eventual problems of access for a fire truck, an ambulance, etc.). In light of this new complaint, we intensified our efforts with the borough in order to push for a formal response to our previous Recommendation.

The question was submitted to the Borough Council which, after a long debate, adopted two resolutions: one authorizing the Direction de l’aménagement urbain et des services aux entreprises to issue notices to the concerned residents requiring that they cease their illegal encroachments and restore the area to its initial state (within a reasonable delay); and the second, authorizing the same department to execute the work itself, if citizens failed to do so, at their expense.

We have received confirmation that the alley has been extricated of the illegal encroachments and that the access and safety problems alleged by the citizen have been resolved. Moreover, there are no longer obstacles in the way preventing Ville de Montréal from proceeding quickly and efficiently to maintenance and repair work that might be required on the sewage infrastructures located under this alley, from time to time.

A commercial building owner complained to the Ombudsman de Montréal because his borough refused to recognize the acquired rights he was convinced he had, regarding the activities that could be practiced in the premises that he leases. The facts are relatively simple:

• From November 15, 2002 until June 30, 2004, this owner was leasing the premises to a person who operated an automobile repair shop, in compliance with the zoning by-laws in force at the time
• On June 30, 2004, this business ceased its occupation of the premises
• The owner immediately started to look for another lessee to engage in the same kind of activity, in the same location
• On September 23, 2004, while the premises were still vacant, the borough modified its zoning by-laws limiting commercial and industrial activities permitted in this sector: automobile repair shops were no longer permitted in this zone
• These zoning modifications aim to promote residential development in the sector concerned, by limiting certain commercial activities susceptible of being detrimental to the quality of life of eventual residents
• In early November 2004, the owner found a new lessee interested in operating an automobile repair shop in his premises
• But, when this lessee asked for his municipal permit, the borough informed him that this commercial activity was no longer permitted and that, consequently, the request for a permit was denied
• The citizen took numerous steps with public employees and elected officials, to try and have his acquired right recognized to lease the premises for the operation of an automobile repair shop, but all of his efforts failed
• The citizen, therefore, requested the Ombudsman de Montréal assistance.

She then submitted to the borough, a notice in which she Recommended that acquired rights be recognized to the owner of these premises. This conclusion was based on the fact that the activity of automobile repair had been legally operated before the modification to the zoning by-law and also because, after the departure of the previous lessee, the owner had quickly started searching for a new lessee to pursue the same kind of activity. There was, therefore, no indication from the owner of an intention to waive his acquired right to lease the premises for the purpose of operating an automobile repair shop.

Following her intervention, the borough requested a legal opinion from the Direction du contentieux.

This action from the borough was taken in good faith. Indeed, we can understand that the acknowledgement of certain acquired rights regarding activities deemed incompatible with the neighborhood’s new plan of residential development could evoke reservations, at least, in the beginning.

After receiving this legal opinion, the director of the Borough confirmed that he accepted the Ombudsman de Montréal conclusions and that the borough would recognize the acquired rights of the owner to lease these premises for the purpose of operating an automobile repair shop.

However, we have informed the owner that these acquired rights are not eternal and that according to the zoning by-laws, it is imperative that he actually exercises them, before the expiration of a 12-month period. The borough however accepted that this 12-month period starts only from the date when the acquired rights were finally recognized, thus, November 7, 2005.

In other words, if these premises are not actually operated as an automobile repair shop before November 6, 2006, neither the citizen nor any lessee will be permitted to start such activities, in these premises.

We also reminded the owner that other commercial practices remained authorized by the modified zoning by-laws and that, consequently, it could be cautious to also explore the possibility of leasing his premises for one of these other practices.

A citizen was disputing the fact that her borough was refusing to let her continue occupying the alley located behind her residence. This occupation of the alley, by her as well as many other residents, was taking place without the consent of the Borough Council or the Municipal Council, whom are yet the only entities having the authority to consent to the sale or the occupation of such public property.

The study of the file revealed that, in 1995, the citizen’s spouse had undertaken a procedure so that the bordering residents could purchase and occupy this alley belonging to the city. The Service de l’approvisionnement et des immeubles of Ville de Montréal at the time had, however, objected categorically to this request because public utility still in operation was implanted below the alley in question.

Despite this refusal, the residents started occupying the alley. They built fences and sheds on public property. The citizen indicated that, at the time, a municipal councilor from her borough would have told her he was not opposed to this.

All of the parties involved have recognized that, in this borough, citizens have encroached on public property in many alleys, sometimes, for many years. And in most cases, neither the city nor, more recently, the borough, have intervened to demand the removal of the fences and sheds built on public property.

The Ombudsman de Montréal therefore looked very closely to the circumstances for which, in this particular case, the borough had decided to send a notice to residents, demanding that the illegal encroachment cease and the restoration of the site. We conferred with many of the city representatives, analysed the borough’s entire file and even went on site, to see the present situation.

Our inquiry showed that it was the breach of a pipe, in another alley located nearby, that prompted the borough officials to make a close study on public utility pipes in this area and on the problem of illegal encroachment.

Following the breach of a pipe, approximately two years ago, the borough requested that its Direction des travaux publics carry out a preliminary study on the state of municipal sewage. This study showed that in at least 25 different places, the sewage located below the alleys was in an advanced state of degradation.

The Direction des travaux publics sensitised the borough to the fact that when breaches would occur, the teams deployed to make the repairs would have a lot of difficulty intervening quickly and efficiently, due to the presence of fences and sheds above the sewage. Indeed, before they gain access to the sewage, the employees would need to move, or destroy, all obstacles installed by the residents.

Despite the resulting inconvenience for the bordering residents, the Ombudsman de Montréal is of the opinion that the borough is justified in demanding that the illegal encroachment cease.

We must emphasise that the borough committed itself to proceed with respect and empathy for the people involved. Representatives will meet with the owners concerned to discuss of a reasonable schedule for the removal of all of the installations encroaching the alley.

Furthermore, we have reminded the citizen that when they reinstall their fences and other installations, it will be important to make sure that the compulsory standards in regards to the height and positioning of these installations, in relation to the borders of the lot, be strictly respected.

Following his application for a construction permit, a borough asked a citizen to disburse, over and above the cost of the permit, a significant amount to cover the construction costs for the driveway access requested by the citizen. The citizen paid the full amount required.

Upon completion of the work, however, the borough sent the citizen an invoice for several hundred dollars, representing the difference between the amount initially charged to the citizen, upon issuance of the permit, and the actual cost charged to the borough by the contractor, for the construction of this driveway access.

The citizen contested this additional invoice with his borough but he was told that the original amount paid was only an estimated deposit. The borough drew his attention to a notice appearing on the permit application which stated: Name of the person responsible to be reimbursed or billed. In the borough’s view, this notice confirmed that the citizen should have known that he could be later reimbursed or billed, depending upon the actual costs of the work carried out. The citizen contended that no one had informed him of either the existence or the significance of the said disclaimer. Therefore, the citizen sought assistance from the Ombudsman de Montréal.

After studying the file and making inquiries with the borough officials, the Ombudsman de Montréal concluded that the said notice was unclear for a person unaccustomed to city procedures and since it had been shown that no employee had explained the significance of this notice to the citizen, the Ombudsman de Montréal estimated that it was unfair to charge additional costs to the citizen at this time and Recommended that the invoice be cancelled.

As a preventive measure, the Ombudsman de Montréal further Recommended to the borough that they modify their form so as to include a clear notice informing citizens that the amount charged at the outset is only approximated and could, therefore, be adjusted later, either higher or lower, depending upon the actual costs of the work requested.

After undertaking numerous fruitless efforts with his borough, a citizen resorted to the Ombudsman de Montréal to request the installation of a new trash can, near his residence.

He resides near two convenience stores and a food market and complained that as a result, the sidewalk and the street were continually littered with rubbish and the borough was doing nothing to remedy the situation. The Ombudsman de Montréal’s intervention led to a rapid resolution of the problem. A garbage receptacle was installed in short order, to the citizen’s satisfaction.