RESTAURANT CANADA CHALLENGES THE CITY OF MONTREAL’S NEW ZONING BY-LAW (BOROUGH OF CÔTE-DES-NEIGES)
On October 30, 2019, in Restaurant Canada v. Ville de Montréal1, the Québec Superior Court dismissed an application for judicial review by Restaurant Canada, an association of restaurateurs (the “Association”) supported by member franchisors and franchisees operating in fast food industry. The Association requested that the Court declare the zoning illegal by-law restricting the establishment of new fast food restaurants near school zones given that this regulation was beyond the City’s powers.
According to the Association, a municipality could not, through the Act respecting land use planning and development, control and regulate the consumption habits of children attending schools in its borough. Consequently, the Association claimed that these regulations were discriminatory in that they would create unjustified distinctions between businesses within the same category.
For its part, the City submitted that a zoning by-law is, by its very nature discriminatory by its objectives and, as such, the public health considerations that led to the regulatory restrictions were perfectly justified.
Following a review of the relevant case law, the Court confirmed that the borough had every right to regulate businesses considered as fast food restaurant2. In fact, a provision in the Act respecting land use planning and development3 is intended to permit municipalities to regulate or prohibit all or certain uses, where occupation is subject to major constraints including for public health reasons because of the proximity of a building or the commercial activity.
The power of Québec municipalities to adopt zoning by-laws restricting the access of fast food restaurants near school zones for public health reasons, under their general powers has been confirmed, resulting in numerous consequences for fast food businesses.
Due to the commercial impact on the development of new fast food establishments near school zones, the Association decided to appeal the judgment. It will be interesting to see what happens next in this debate and its impact on the scope of the general powers held by municipalities and cities when adopting their zoning by-laws in the area of public health.
By Catherine Demers
1 2019 QCCS 4549.
2 2019 QCCS 4549, par. 5.
3 Act respecting land use planning and development, CQLR c A-19.1, art. 113 (2) 16.1