Municipalities’ authority to regulate signage

Under the Act respecting land use planning and development (RLRQ, c. A-19.1), Québec municipalities may "regulate, by zone, the construction, erection, alteration and maintenance of all bill-boards and signs already erected or to be erected in the future" (section 113, paragraph 2 [14]).

This authority was the subject of a recent ruling by the Court of Appeal of Québec (Ville de Montréal v. Astral Média Affichage, 2019 QCCA 1609) in which the majority upheld a ban on the posting of billboards in the city's Plateau-Mont-Royal borough.

The decision provides an opportunity to reiterate the basic principles of municipalities' authority to regulate signage.

Municipal authority and acquired rights

The provision that provides municipalities with the authority to regulate all billboards and signs already erected allows municipalities not to acknowledge acquired rights. This is one of the very rare cases in which a municipal council may regulate a construction that is already erected.

However, in the Astral Média Affichage ruling, a majority of the Court of Appeal affirmed that the power is not absolute. Indeed, when a municipality seeks to terminate acquired rights, it must either indemnify the person affected or enable this person to amortize its rights (par. 95).

In this particular case, the borough council required that the billboards be moved or removed within a year. This one-year period was deemed reasonable by the Court of Appeal (par.96). The council therefore was not required to indemnify the owners of the billboard.

Not a territory-wide ban

While the Court recognized the validity of a ban across all of Plateau-Mont-Royal, a municipality still does not have the authority to prohibit billboards across its territory.

A majority of the Court ruled that the borough council exercised its authority on behalf of the city of Montréal, which does not prohibit billboards on all its territory but only on the territory of Plateau-Mont-Royal (par. 83 and 87).

As such, a local municipality cannot look to this precedent to justify a complete ban on billboards across all its territory, unless it is empowered by a development plan to do so. Even then, it must uphold the right to freedom of expression.

Freedom of expression

Another key element is the analysis by the Honourable Simon Ruel on behalf of the majority of the restriction imposed by the regulation on the freedom of expression protected under section 2 (b) of the Canadian Charter of Rights and Freedoms. Though signage constitutes an activity that is protected under the Charter, Justice Ruel was of the opinion that the regulation applies a restriction that is justified in a free and democratic society (section 1 of the Canadian Charter of Rights and Freedoms).

Citing R. v. Guignard, 2002 SCC 14, Justice Ruel concluded that the prevention of visual pollution constitutes a reasonable, urgent and real objective (par. 115 and 116). There is a rational connection between a billboard ban and the objective owing to a billboard's significant visual impact (par. 127) and the fact that all billboards are targeted, regardless of their content (par. 130).

The fact that the ban is not related to the content but rather to the sign's location justifies the minimal impairment of the right to freedom of expression (par. 139). Furthermore, Justice Ruel added that the appellant in the case, which is a commercial operator, invoked their clients' freedom of expression but failed to provide evidence of the impact of the restriction on their clients (par. 140 to 142).

When assessing the proportionality of the measures with regard to the objectives, Justice Ruel added that persons seeking to communicate a message could turn to other media (e.g. local newspapers, Internet, signage in various locations in the borough) and billboards located in other boroughs (par. 156 and 157).

Justice Ruel also cited the area's gentrification and choice to improve the quality of the urban landscape as factors that justify the measure (par. 165 and 166). This type of limitation may not be warranted in a sector that does not have the same characteristics as Plateau-Mont-Royal (par. 170).

In sum, a municipality must take a careful approach before enacting a ban on billboards. It must ensure that the ban is limited to the territory and that the territory on which the ban applies is one in which it has a legitimate interest in reducing visual pollution (e.g. downtown core, residential neighborhood or major commercial street), even if this means authorizing billboards in industrial sectors or along highways.