On June 3, 2020, Christian Dubé, then Minister Responsible of Government Administration and Chair of the Conseil du trésor, tabled Bill 61 in the National Assembly ("Bill 61") to restart Québec's economy and mitigate the consequences of the public health emergency declared in March of this year. Click here to read our Bulletin on Bill 61.
Not long after being introduced, Bill 61 received heavy criticism regarding all of the main provisions of the Bill by both members of the opposition and persons or public bodies such as the Auditor General, the Ombudsman, the Québec Bar Association, the Monitoring Committee of the Charbonneau Commission and the Office of the Inspector General of Montreal. Bill 61 was finally abandoned on August 19, 2020.
It is in this context that on Wednesday, September 23, 2020, the new Minister Responsible of Government Administration, Minister Responsible of Democratic Institutions and Electoral Reform and Chair of the Conseil du trésor, Sonia Lebel, tabled Bill 66: An Act respecting the acceleration of certain infrastructure projects ("Bill 66") in the National Assembly.
The stated goal of this new version of Bill 61 is to help compensate for the impacts of the COVID-19 pandemic by stimulating Québec's economic recovery and by accelerating the start of specific infrastructure projects, while complying with the applicable legal framework, namely with respect to public contracts and protection of the environment.
Bill 66 provides temporary acceleration measures for specifically designated infrastructure projects, the number of which has dropped from 202 under Bill 61 to 181 under Bill 66. This is a limited list, which will be fixed once Bill 66 is adopted. Contrary to what was provided under Bill 61, it will therefore no longer be possible for the government to add other infrastructure projects after the adoption of Bill 66. Amongst the infrastructure projects subject to Bill 66, 81 are related to the health sector, 52 are related to roads and public transit, 40 are related to schools, and 8 are related to government buildings.
It should be noted that amongst the changes made under Bill 66, the immunity of ministers from the application of the law, the provisions regarding the extension of the public health emergency and the possibility of being exempt from the Act respecting contracting by public bodies were not reintroduced.
Considering the exceptional nature and their potential impacts on the rights of citizens, Bill 66 and the provisions set forth therein could be challenged legally.
The following is a brief summary of the main acceleration measures proposed under Bill 66:
• Bill 66 provides a simplified expropriation procedure that does not require the government's prior approval before proceeding, subject to giving prior notice to the Minister responsible of transports informing him of the intention to acquire property by expropriation in order to complete an infrastructure project designated in Bill 66.
• The owner of an expropriated property may not contest the notice of expropriation, but will still be able to apply to the Tribunal administrative du Québec to challenge the compensation offered.
• Bill 66 provides certain provisions concerning specifically the completion of the Montreal blue line metro project.
Occupation of Public Land
• Bill 66 provides the possibility of undertaking work on part of the domain of the State (public land) before the required rights are obtained.
• Bill 66 exempts designated projects from having to obtain the required environmental authorizations under the Environment Quality Act (the "EQA"). Environmental authorizations must, however, be obtained for projects where the work is to be performed in wetlands and bodies of water, on a former residual materials elimination site or in the presence of a threatened or vulnerable species, as well as for any water withdrawal". Projects involving work in wetlands and bodies of water will be exempt from the obligation to submit certain documents in support of their application for an authorization.
• Bill 66 also provides modifications to the Bureau d'audiences publiques sur l'environnement's ("BAPE") procedure, more specifically with respect to the public hearings to be held for designated projects subject to this procedure.
• Moreover, two projects will be exempt from the BAPE process, namely the projects for the redevelopment of Route 117 between Labelle and 24 Rivière-Rouge and for the redevelopment of Autoroute 30 between Brossard and Boucherville.
• The Minister of the Environment and the Fight against Climate Change retains the same powers to ensure a project is environmentally compliant, and all remedies, sanctions, fines and measures under the EQA remain applicable.
Land Planning and Development
• Bill 66 provides an exemption from the application of the provisions of the Act respecting land use planning and development for government interventions.
• Simplifications to the procedure for obtaining a municipal authorization are also provided to expedite the issuance of construction permits. Even if a municipality fails to issue the necessary authorization, an infrastructure project will be deemed to have obtained all required municipal authorizations and to be compliant with applicable regulations after a period of 45 days, subject to completion of certain administrative formalities.
Measures to Facilitate the Payment of Certain Public Contracts
• Bill 66 also provides measures to facilitate payment to ensure that the government will pay businesses in a timely manner. These measures will apply to projects with a value of less than $20 million that are designated in Bill 66.
Oversight of Public Contracts
• Bill 66 gives the Autorité des marchés publics ("AMP") an increased role in monitoring public contracts arising from any designated project, in addition to the powers already granted under the Act respecting contracting by public bodies.
• To carry out this role, the AMP will have the same powers and immunity conferred to commissioners appointed under the Act respecting public inquiry commissions, such as the power to require any person to produce documents. The AMP will also have the power to order a public body to take corrective measures, to terminate or suspend the performance of a public contract and to impose fines to offenders.
• Bill 66 requires semi-annual reporting concerning, amongst others, oversight activities conducted by the AMP, the progress status of each project and the application of acceleration measures relating to the environment.