A citizen submitted a complaint to the Ombudsman de Montréal to prevent the cutting down of mature trees on her neighbour’s property, behind her backyard. At the time of the request, the neighbour had already obtained a permit authorizing him to cut down these trees.
The citizen contested the legality of this permit, under the municipal statutes, notably, the new Montréal Charter of Rights and Responsibilities. She was also seeking our opinion as to the reasonable or unreasonable character of the borough’s decision to issue this permit.
If we were to conclude that the permit should not have been granted, however, the trees would have already been cut down, by the time we reached our conclusion.
Given these exceptional circumstances, the Ombudsman de Montréal issued, for the first time, an interim Recommendation asking Arrondissement de Côte-des-Neiges–Notre-Dame-de-Grâce to temporarily suspend the permit which had been issued and to take appropriate measures to prevent the cutting down of these trees, while we were looking at the situation.
Our office had committed to act very quickly in this file and we had even confirmed to the borough that, as soon as it would have forwarded to us the relevant information we asked, we would issue our final conclusions or recommendations in no later than one week’s time.
Unfortunately, the borough did not agree to follow through with our interim Recommendation because, in its opinion, it did not have the power to suspend a permit which had already been issued.
Notwithstanding this negative first response, the Ombudsman de Montréal still believes that issuing interim Recommendations is a path she must continue to explore when circumstances are such that, if the borough or department waits until the end of her investigation before it takes any action, it may then be too late for her Recommendation to be useful.
We must, however, make the municipal representatives more aware of the appropriateness of such interim Recommendations, in the best interest of citizens. We will also emphasize on how such an approach may also be beneficial to the City, by limiting the risks of having to later redress or compensate for a situation which could have been illegal or inappropriate.
As to the merit of the case, i.e. the appropriateness of the permit to cut down these specific trees, our investigation revealed that:
- The trees concerned were of a species of little value;
- Some of the trees concerned were sick and old and were likely to represent a hazard, in a short term;
- The permit had been issued in conformity with the Land Planning By-law;
- The managers in charge had thoroughly studied the application in light of the various policies ensuring the protection of trees; and
- In the present instance, the decision to allow the cutting down of these trees was not unreasonable.
In the present instance, the decision to allow the cutting down of these trees was not unreasonable.On the other hand, it soon became clear, during our investigation, that the borough knew little of the Montréal Charter of Rights and Responsibilities and of its legal status i.e. the fact that it is a municipal by-law which is binding on all municipal employees and elected officials.
This file provided opportunity to better inform the representatives of Arrondissement de Côte-des-Neiges–Notre-Dame-de-Grâce of this new document and on their legal duty to consider the commitments therein.
