2019 QCCA 1609, 2019 QCCA 1609

Official English Translation of the reasons of Justice Ruel [*] Ville de Montréal c. Astral Media Affichage 2019 QCCA 1609 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-026440-164 (500-17-066207-112) DATE: September 25, 2019 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. MARK SCHRAGER, J.A. SIMON RUEL, J.A. VILLE DE MONTRÉAL APPELLANT – INCIDENTAL RESPONDENT – Defendant – Cross-plaintiff v.

ASTRAL MEDIA AFFICHAGE INDUSTRIES JIM PATTISON LTÉE CBS CANADA HOLDINGS CO RESPONDENTS – INCIDENTAL APPELLANTS - Plaintiffs/Cross-defendants -and- OUTFRONT MEDIA CANADA LP RESPONDENT – INCIDENTAL APPELLANT – Plaintiff in continuance of suit/Cross- defendant in continuance of suit -and- IRWIN H. LANDE GLENN J.

FELDMAN RESPONDENTS – INCIDENTAL APPELLANTS – Plaintiffs - and - PATTISON OUTDOOR ADVERTISING LP IMPLEADED PARTY – INCIDENTAL APPELLANT – Intervener JUDGMENT [ 1 ] The appellant and the respondents appeal from a judgment rendered on September 22, 2016 by the Honourable Marc-André Blanchard of the Superior Court, District of Montreal. [ 2 ] For the reasons of Ruel, J.A., with which Pelletier, J.A. concurs, THE COURT : [ 3 ] ALLOWS the principal appeal with legal costs and renders the judgment that should have been rendered: 3.1. DISMISSES the plaintiffs’ amended motion to institute proceedings; 3.2.

GRANTS the defendant’s cross-application; 3.3. DECLARES that the billboards in the borough of Plateau-Mont-Royal identified in exhibit P-8 do not comply with the municipal by-law in force; 3.4. ORDERS the cross-defendants to demolish the billboards in the borough of Plateau-Mont-Royal identified in exhibit P-8, each one being responsible for removing its own billboards; 3.5. THE WHOLE with legal costs;

[ 4 ] GRANTS the respondents six months as of the date of this judgment to comply with the demolition order; [ 5 ] DISMISSES the incidental appeal, without costs; [ 6 ] Schrager, J.A. would have dismissed the principal appeal and allowed the incidental appeal. FRANÇOIS PELLETIER, J.A. MARK SCHRAGER, J.A. SIMON RUEL, J.A. Mtre Éric Couture Mtre Anne-Marie McSween GAGNIER GUAY BIRON For the appellant – incidental respondent Mtre Sylvain Lanoix Mtre Jean-François Brunette DUNTON RAINVILLE For the respondents and the impleaded party – incidental appellants Date of hearing: January 29, 2019 REASONS OF RUEL, J.A.

Overview [ 7 ] In a judgment dated September 22, 2016, the Superior Court declared null and unconstitutional an urban planning by-law of the borough of Plateau-Mont-Royal that prohibits billboards, barring certain exceptions. Billboards are large, bright structures used by advertising companies to display third-party commercial messages. [ 8 ] The judge held that the by-law was authorized under both the Act respecting land use planning and development and the Charter of Ville de Montréal . He decided, however, that the by-law unjustifiably violates the right to freedom of expression guaranteed by the Charters .

Both the City (on the constitutional aspect) and the commercial advertisers (on the municipal aspect) appeal that decision. [ 9 ] In

summary, I find that the impugned by-law does not exceed the City’s powers. Section 157(1) of the Charter of Ville de Montréal grants the City the power to “prohibit, by portion of territory” the construction or installation of existing or future billboards. Under s. 157(3), non-compliant billboards may be demolished. [ 10 ] While, in principle, a municipality cannot completely prohibit a use without express legislative authorization, in this case the power to prohibit billboards is vested in the City, which exercises this power by way of delegation to the boroughs.

The City, however, may repatriate this power. [ 11 ] When the Plateau limits billboards, it is a prohibition by the City on a portion of its territory. It is not a complete ban throughout the City. [ 12 ] This conclusion has a significant impact on the constitutional issue as the judge held that the by-law constitutes a [ translation ] “maximum impairment” on freedom of expression. [ 13 ] The by-law is justified even though it infringes on freedom of expression, because it has a pressing and substantial objective, that is, to prevent visual pollution.

This objective is part of a long-standing strategy by the City and the Plateau to improve the quality of the urban landscape, which includes eliminating visual pollution to increase the quality of the pedestrian experience, enhancing the landscape, and redefining certain portions of the territory accordingly. [ 14 ] The judge usurped the role of the municipal legislator when he stated that this objective appeared to be based on an [ translation ] “essentially ideological concept” and that the sought-after benefits were based on [ translation ] “an ideological bias on which urban planning method is preferable”.

When conducting a Charter analysis of the constitutional validity of a legislative or regulatory provision, the judge must examine whether the provision is lawful, not whether it is appropriate. [ 15 ] There is a rational connection between the objective of preventing visual pollution and limiting billboards, which are very large,

very bright structures. Moreover, t he infringement on freedom of expression does not exceed what is reasonably necessary to achieve that objective. [ 16 ] The by-law limits billboards on only a portion of the City’s territory. They are still allowed in several other boroughs.

Further, they are not even totally banned throughout the Plateau, because some advertising signs are allowed, for example, those installed for a particular event or indoors. [ 17 ] The limit placed on billboards under the by-law is neutral in that it does not attack the informational content protected by freedom of expression, but is instead intended to eliminate visual pollution. [ 18 ] The commercial advertisers submit that third parties are suffering serious harm to their freedom of expression, but have failed to prove this. Commercial advertising accounts for 95% of the messages displayed by the advertisers.

While the courts recognize the importance of commercial freedom of expression, this particularity must be considered when balancing the values at stake. [ 19 ] In this era of digital and social media, the use of large visual panels is but one of a multitude of other means to disseminate commercial advertising.

Persons who want to disseminate a message addressed specifically to Plateau residents can always do so through the local newspapers, through posters affixed in various locations around the borough, and through geographically targeted campaigns on social media. [ 20 ] The transformation and particular characteristics of the Plateau must also be considered.

This neighbourhood is known for its rich heritage and architecture, is largely pedestrian- and bicycle-friendly, and offers unique cultural and historical characteristics and landscapes. [ 21 ] The Plateau’s main commercial arteries feature an abundance of restaurants, bars, boutiques, venues and hotels.

The borough has become gentrified in recent years as an increasing number of young professionals, artists and students seeking a pleasant neighbourhood and quality of life have moved there. [ 22 ] In this context, the deleterious effects of the limitation and removal of billboards on the Plateau’s territory are proportionate given the objective sought and the resulting salutary effects. Background [ 23 ] The Ville de Montréal [2] (the “City”) and Astral Media Affichage, Industries Jim Pattison ltée and Outfront Media Canada LP (the “commercial advertisers”), [3] as well as Mr. Irwin H. Lande and Mr. Glenn J.

Feldman appeal from a judgment rendered on September 22, 2016 by the Superior Court, District of Montreal. [4] [ 24 ] That judgment [5] declared, inter alia , that art. 487.1 of the Règlement d’urbanisme de l’arrondissement Plateau-Mont-Royal 01-277 / [ translation ] Urban Planning By-law for the Plateau-Mont-Royal Borough 01-277 (the “ Urban Planning By-law ”) prohibiting advertising signs on the borough’s territory, barring certain exceptions, is null and unconstitutional because it unjustifiably violates the right to freedom of expression protected under s. 2(

b) of the Canadian Charter of Rights and Freedoms [6] (the “ Canadian Charter ”) and s. 3 of the Charter of human rights and freedoms (the “ Quebec Charter ”). [7] Essential facts [ 25 ] As part of their activities, the commercial advertisers [8] sell advertising space on structures they own, commonly referred to as “advertising signs”. [9] [ 26 ] Advertising signs larger than 2.5 m 2 are called “billboards” or “advertising panels” and can be found on both private and public immovables, with the consent of the owners. [10] In order to erect these billboards, the commercial advertisers must enter into various lease agreements with the owners of the land or building where their structures are located. [ 27 ] Mr.

Irwin H. Lande and Mr. Glenn J. Feldman are two of these owners.

They leased the roof of their building in the borough of Plateau-Mont-Royal (“P.M.-R.”) first to CBS Canada Holdings Co., and then to Outfront Media Canada LP, to keep a billboard there, one that has been there since 1961. [11] [ 28 ] The various billboards, which were built and installed by the commercial advertisers, were added to the City’s property assessment roll and are subject to various taxes. [12] [ 29 ] At the relevant time, the commercial advertisers operated all of the 45 billboards located on P.M.-R.’s territory. [ 30 ] On July 5, 2010, the P.M.-R. borough council adopted the Règlement 2010-10 modifiant le Règlement d’urbanisme (01-277), le Règlement sur le certificat d’occupation et certains permis (R.R.V.M., c.

C-3.2) et le Règlement sur les tarifs de l’arrondissement du Plateau-Mont-Royal (2009-14) afin d’interdire les enseignes publicitaires sur l’ensemble du territoire de l’arrondissement / [ translation ] By-law No 2010-10 amending the Urban Planning By-law (01-277), the By-law concerning Occupancy Certificates and Certain Permits (R.B.C.M., c.

C-3.2) and the By-law concerning Fees in Plateau-Mont-Royal Borough (2009-14) to Ban Advertising Signs throughout the Borough Territory (“ By-law 2010-10 ”). [13] [ 31 ] Resolution number CA10 25 0210 of the P.M.-R. borough council states that P.M.-R. [ translation ] “wants to ban all advertising signs throughout its territory to avoid the increased visual nuisance related thereto”. [ 32 ]

Section 1 of By-law 2010-10 introduced a new art. 487.1 into the Urban Planning By-law that states:

[ translation ] 487.1. Advertising signs are prohibited throughout the territory, except for advertising signs covered by Chapters IV and V of Title V of this by-law. Existing advertising signs may be maintained, however, even when prohibited under the above paragraph, if they were compliant with the by- law before this provision came into force or, if they were not compliant, they were protected by vested rights. Such signs cannot be changed, moved or replaced. [14] 487.1. Toute enseigne publicitaire est prohibée sur l’ensemble du territoire, à l’exception d’une enseigne publicitaire visée par les chapitres IV et V du

titre V du présent règlement . Toutefois, une enseigne publicitaire existante peut être maintenue, même si elle est prohibée par l’alinéa précédent, si elle était conforme à la réglementation avant l’entrée en vigueur du présent

article ou, si elle n’y était pas conforme, elle était protégée par droits acquis. Une telle enseigne ne peut être modifiée, déplacée ou remplacée. [ 33 ] The exceptions referred to in the first paragraph are set out in arts. 526 and 537 to 539 of the Urban Planning By-law [15] [emphasis added]: [ translation ] 526.

The borough council may, by ordinance, control or authorize: (1) signs and advertising signs for events, celebrations or demonstrations; (2) the inscription of the name and trademark of the sponsor of a work of art or ornamental work, of a public space, of a monument or of the restoration of an old building; (4) banners on street lamps or, to identify a place, on an exterior wall; (5) signs and advertising signs for public, cultural, tourist and community purposes, for a set period. Those signs and advertising signs are authorized without a permit. [16] 537.

The following signs or advertising signs are authorized without being subject to the limits under this title: (1) indoor signs or advertising signs , except as provided in this by-law; 526.

Le conseil d’arrondissement peut, par ordonnance, régir ou autoriser : 1 ° des enseignes et des enseignes publicitaires , à l'occasion d'un événement, d'une fête ou d'une manifestation; 2 ° l'inscription du nom et de la marque de commerce du commanditaire d'une oeuvre d'art ou ornementale, d'un espace public, d'un monument ou de la restauration d'un bâtiment ancien; 4 ° une bannière sur un réverbère ou, aux fins d'identifier un lieu, sur un mur extérieur; 5 ° des enseignes et des enseignes publicitaires à des fins publique, culturelle, touristique et sociocommunautaire pour une période de temps déterminée.

Ces enseignes et enseignes publicitaires sont autorisées sans permis. 537. Les enseignes ou les enseignes publicitaires suivantes sont autorisées sans être assujetties aux limites prescrites par le présent

titre : 1 ° une enseigne ou une enseigne publicitaire intérieures, sauf dans la mesure prescrite par le présent règlement; 2 ° une inscription gravée ou en relief, intégrée au parement d'un bâtiment et formée des mêmes matériaux que ceux qui composent ce parement;

(2) engraved or raised inscriptions, integrated into the facing of a building and made of the same materials as the facing; (3) signs on a parasol or a retractable tarpaulin; (4) signs or advertising signs made up exclusively of growing plants; (5) signs beside the entrance of an entertainment facility and located under a marquee or a roof, advertising a show; (6) historic inscriptions or commemorative plaques; (7) public signs; (8) public safety signs; (9) on a road vehicle, an advertising sign for an establishment, a product, a service or an immovable for the benefit of the person in whose name the vehicle is registered; (10) signs specifying the time and temperature, installed elsewhere than on a roof; (11) religious or government symbols; (12) sign of a disposable container or a dispensing device; (13) signs or advertising signs not visible from a public thoroughfare, park or adjacent immovable. [17] 3 ° une enseigne sur un parasol ou une banne rétractable; 4 ° une enseigne ou une enseigne publicitaire formée exclusivement de plantes vivantes; 5 ° une enseigne bordant l'entrée d'une salle de spectacle et située sous une marquise ou un toit, qui annonce un spectacle; 6 ° une inscription historique ou une plaque commémorative; 7 ° la signalisation publique; 8° une indication nécessaire pour la sécurité du public; 9° sur un véhicule routier, une enseigne publicitaire qui annonce un établissement, un produit, un service ou un immeuble au bénéfice de la personne au nom de laquelle l'immatriculation dudit véhicule a été effectuée; 10° une indication relative à l'heure et à la température, installée ailleurs que sur un toit; 11° un symbole religieux ou gouvernemental; 12° l'enseigne d'un contenant amovible ou d'un appareil distributeur; 13° une enseigne ou une enseigne publicitaire non visible depuis une voie publique, un parc ou un immeuble voisin. 538.

La pose d'une affiche publicitaire temporaire est autorisée sans limite sur un module d'affichage libre, spécifiquement destiné à cette fin par la Ville. 539. La pose d'une affiche publicitaire temporaire est autorisée sans limite sur une palissade de chantier sauf si le propriétaire l'interdit ou la limite au moyen d'une inscription à cette fin.

538. A temporary advertising poster [18] may be put up without limit on a poster display module specifically used for that purpose by the city. 539. A temporary advertising poster may be put up without limit on a hoarding except if the owner prohibits it or limits it by means of a notice to that effect. [ 34 ]

Section 5 of By-law 2010-10 also amended art. 10 of the Règlement sur le certificat d’occupation et certains permis / [ translation ] By-law concerning Occupancy Certificates and Certain Permits [19] to require that an application for a new certificate of authorization be submitted within 30 days of the by-law coming into force so that lawfully-erected advertising signs could be maintained on the borough’s territory. [20] [ 35 ] By-law 2010-10 came into force on July 21, 2010. [21] [ 36 ] On August 4, 2010, P.M.-R. issued certificates of authorization for 43 out of the 45 billboards operated by the commercial advertisers. [22] On January 14, 2011, P.M.-R. issued a certificate of authorization to Astral Media Affichage for the 44th billboard. [23] The commercial advertisers consider that the 45th billboard, belonging to Outfront Media Canada LP, [24] has vested rights even though it did not receive a certificate of authorization. [25] [ 37 ] Shortly after, on September 7, 2010, the P.M.-R. borough council adopted the Règlement 2010-14 modifiant le Règlement d’urbanisme (01-277), le Règlement sur le certificat d’occupation et certains permis (R.R.V.M., c.

C-3.2) et le Règlement sur les tarifs de l’arrondissement du Plateau-Mont-Royal (2009-14) afin de fixer un délai pour l’enlèvement des enseignes publicitaires dérogatoires sur l’ensemble du territoire de l’arrondissement [ translation ] By-law No 2010-14 amending the Urban Planning By-law (01-277) , the By-law concerning Occupancy Certificates and Certain Permits (R.B.C.M., c. C-3.2) and the By-law concerning Fees in the Plateau-Mont- Royal Borough (2009-14) to Set a Time Period to Remove Non-Compliant Advertising Signs Throughout the Borough Territory (“ By- law 2010-14 ”). [26] [ 38 ]

Section 12 of By-law 2010-14 states that: [ translation]

Article 487.1 [of the Urban Planning By-law ] is amended by replacing the second paragraph with the following: The ban set out in the first paragraph also applies to existing advertising signs, which must be removed within twelve (12) months of this paragraph coming into force. [27] 12. L’article 487.1 [du Règlement d’urbanisme ] est modifié par le remplacement de son deuxième alinéa par le suivant .

L’interdiction édictée au premier alinéa s’applique également aux enseignes publicitaires existantes, lesquelles doivent être enlevées dans les douze (12) mois de l’entrée en vigueur du présent alinéa. [ 39 ] In addition, ss. 13 and 14 of By-law 2010-14 amended art. 660 of the Urban Planning By-law to remove advertising signs from the vested rights regime. [28]

Article 660 had provided that non-compliant advertising signs could be repaired and had provided for the loss of vested rights in certain situations, including when an advertising sign was changed, moved, replaced or removed. [ 40 ]

Section 15 of By-law 2010-14 amended the Règlement sur le certificat d’occupation et certains permis / [ translation ] By-law concerning Occupancy Certificates and Certain Permits by repealing ss. 9 to 13 on the need to obtain a certificate of authorization to maintain existing advertising signs. [29] [ 41 ] The evidence establishes that the adoption of a by-law requiring the removal of existing advertising signs soon after the adoption of an initital by-law banning future advertising signs, but protecting vested rights, was part of a strategy designed by P.M.-R. to ultimately eliminate advertising signs throughout its territory. [30] [ 42 ] First, By-law 2010-10 allowed P.M.-R. to both ensure that there were no new billboards and to conduct an inventory of those on its territory, by requiring certificates of authorization to be issued.

Once this was done, By-law 2010-14 allowed for the removal of the existing billboards that had been identified. [31] [ 43 ] On October 12, 2010, counsel for the commercial advertisers formally notified P.M.-R. not to proceed with the final adoption of By-law 2010-14 . On October 30, 2010, Mr. Lande and Mr. Feldman did likewise. [32] [ 44 ] P.M.-R. did not respond to the formal notice and, on November 1, 2010, proceeded with the final adoption of By-law 2010- 14 . [33]

[ 45 ] On December 23, 2010, the deputy clerk of the City issued a certificate of conformity of By-law 2010-14 with the Planning Program. The by-law therefore came into force on that date. [34] [ 46 ] On January 19, 2011, P.M.-R. sent the commercial advertisers a letter asking them to remove all their billboards by December 23, 2011. [35] [ 47 ] On June 20, 2011, the commercial advertisers, along with Mr. Lande and Mr.

Feldman, filed a motion to institute proceedings asking the Superior Court to declare, inter alia , that P.M.-R. cannot completely ban advertising signs on its territory, that it cannot force the removal of these signs without an expropriation for municipal purposes, and that art. 487.1 of the Urban Planning By-law [36] is null as it is ultra vires and unconstitutional because it unjustifiably violates the right to freedom of expression. [37] [ 48 ] On October 24, 2012, the City filed an amended defence and a cross-application to demolish and cease use asking the Superior Court to order the commercial advertisers to remove all their billboards on P.M.-R.’s territory, under s. 227 of the Act respecting land use planning and development [38] (the “ Act ”). [ 49 ] In 2016, at the time of the trial, the commercial advertisers still operated a total of 38 billboards on P.M.-R.’s territory.

Judgment appealed Municipal law issues [ 50 ] The judge noted that even though a municipality cannot ban otherwise legal activities throughout its territory in the absence of legislative authority, the case law recognizes that partial zoning bans are legal. [39] [ 51 ] Relying on the decision of this Court in Magog (Ville de) c. Restaurants McDonald du Canada Ltée (“ Magog ”), [40] rendered in 1996, the judge concluded that s. 113(14) of the Act gives a municipality the power to regulate the maintenance of existing advertising signs.

The judge held that this provision [ translation ] “authorizes a by-law similar to that of the City in this case for billboards, much like what was authorized regarding a commercial sign in Magog”. [41] [ 52 ] Moreover, the judge noted that s. 157 of

Schedule C to the Charter of Ville de Montréal [ translation ] “allows the City to prohibit signs or billboards throughout its territory”. [42] Consequently, this provision and s. 113(14) of the Act allowed the City to act as it did, i.e., to completely ban billboards throughout P.M.-R.’s territory. [43] [ 53 ] With respect to disguised expropriation and the characterization of the billboards (movables or immovables), the judge noted that since 25 of the 38 billboards rested directly on land and were constructions or works of a permanent nature, [44] they were immovables within the meaning of the ordinary law. [45] [ 54 ] The judge concluded that the 13 billboards located on a building wall or roof were also immovables within the meaning of the Civil Code of Québec given their lasting attachment to the buildings and the permanent nature of their installation. [46] [ 55 ] Referring to the Superior Court judgment in Québec (Ville) c.

Marché Trait-Carré inc , [47] the judge noted that, when abolishing vested rights, a muncipality must compensate citizens for the expropriation of their rights or provide a period within which citizens can continue the non-conforming use to recover their investment (known as the “amortization of vested rights”). [ 56 ] Considering that over five years had elapsed since By-law 2010-14 had come into force, the judge concluded that the commercial advertisers’ vested rights in the 38 billboards they operated on P.M.-R.’s territory had been amortized. [48] [ 57 ] The judge dismissed the arguments of Mr. Lande and Mr.

Feldman that they were being subjected to a disguised expropriation. He stated, [ translation ] “it cannot be said that the contested by-law prevents any possible reasonable use by the owner, that it renders the ownership absolutely useless, that the owner cannot use or sell it or that it is deprived of all value”. [49] Constitutional issues [ 58 ] The City concedes that the impugned by-law provisions infringe on freedom of commercial expression.

The judge therefore analyzed the justification under s.1 of the Canadian Charter . [50] [ 59 ] The judge first noted that the City considers that By-law 2010-10 and By-law 2010-14 [ translation ] “are an inseparable whole”. [51] He therefore considered this position when analyzing their constitutional validity. [ 60 ] The judge found that preventing visual pollution was a reasonable, pressing and substantial objective as determined by the Supreme Court in R. v.

Guignard . [52] Given that there was no reason to question this finding, the judge held that the City had discharged its burden in this regard. [53] [ 61 ] The judge concluded that there was a rational connection between the legislative objective and the infringing measure, and remarked that there was no need for any direct evidence of this. [54] [ 62 ] The judge noted, however, that the [ translation ] “minimal impairment of freedom of expression became, de facto , by the very nature of the measure undertaken and the City’s intention, the maximum impairment, in this case, the suppression of speech”. [55] He explained that when a total ban infringes on a fundamental right, closer consideration is called for given the resulting radical consequences. [56] [ 63 ] The judge relied on the guidance of the Supreme Court in Alberta v.

Hutterian Brethren of Wilson Colony , [57] according to which, where no alternative “means [other than a total ban] are reasonably capable of satisfying the government’s objective, the real issue is whether the impact of the rights infringement is disproportionate to the likely benefits of the impugned law”. [58]

[ 64 ] Consequently, the judge moved on to the final step of the test, being the proportionality between the deleterious effects and the advantages offered by the infringing measures. The judge felt that the evidence revealed that exterior advertising signs are by far the most inexpensive medium while offering a high degree of dissemination.

They therefore enable persons who want to reach a large audience, but who lack the sufficient resources to do so, to disseminate their messages effectively. [59] [ 65 ] Furthermore, the total billboard ban in a borough as important as P.M.-R. certainly interferes with the geographical coverage in the Montreal area and the effectiveness of this medium as a means of expression.

It also deprives persons who want to communicate a targeted message to this borough’s population of an effective and inexpensive means of doing so. [60] [ 66 ] The judge acknowledged that 95% of the messages on billboards were commercial advertising and noted that the remaining 5% were free public service messages, for example, messages from the Ministère des Transports du Québec to inform drivers of various issues or advertising for not-for-profit organizations, charitable or social foundations and cultural enterprises. [61] Thus, abolishing the opportunity to benefit from access to less expensive advertising space would cause considerable harm to such persons or organizations. [62] [ 67 ] It should be noted, however, that this statement was based on expert testimony from both sides to the effect that billboards are the most inexpensive means to reach the target population.

The commercial advertisers did not present any direct evidence from the persons directly concerned, such as representatives from ministries, organizations, foundations or cultural enterprises. [ 68 ] The judge stated that the ill the City sought to prevent, i.e., visual pollution, was based on an [ translation ] “essentially ideological concept of the elected public administration, partly for aesthetic reasons and partly for reasons related to its definition of an ideal quality of life”. [63] The judge did not find that [ translation ] “it countered a polymorphous social issue that involved several heterogeneous sociological elements”. [64] [ 69 ] The judge noted that freedom of commercial expression enjoys considerable protection.

The expression promoted by the commercial advertisers plays a role in our social organization since it fosters informed economic choices. Furthermore, billboards are of major value to society because they convey messages about cultural or artistic events, or even advertising campaigns on subjects of public interest. [65] [ 70 ] Finally, the judge considered that the social benefit provided by banning these billboards was not as important.

The fact that most of them were located on the periphery or outer limits of residential areas tempered the need to abolish them to improve the quality of urban life. [66] [ 71 ] The judge therefore concluded that the deleterious effects of the infringement of freedom of expression exceeded the expected benefits of the impugned by-laws. These by-laws could not be justified under s. 1 of the Canadian Charter . [67] Analysis [ 72 ] The principal appeal of the City concerns the constitutional issues, whereas the incidental appeal of the commercial advertisers (and Mr. Lande and Mr.

Feldman) concerns the municipal issues of the case. The analysis of the municipal issues has a significant impact on the constitutional aspect and should be addressed first. [ 73 ] The basic issues raised by this appeal are as follows: 1. In the incidental appeal: Are the impugned by-law provisions banning and providing for the removal of existing billboards in the borough of P.M.-R. ultra vires ? 2. In the principal appeal: Do the impugned by-law provisions unjustly infringe the freedom of expression protected by the Charters ? 1.

Incidental appeal [ 74 ] In my opinion, to determine the appeal it is not necessary to examine the provisions of the Act , as the specific provisions in the Charter of Ville de Montréal [68] are sufficient to deal with the issues raised by this dispute. [ 75 ]

Section 157 of

Schedule C to the Charter of Ville de Montréal provides [emphasis added]:

157. The city may, by by-law, (1) govern or prohibit, by portion of territory, the construction, installation, alteration and maintenance of all existing or future signs and billboards , and require for their maintenance or installation a permit of which it shall determine the cost; (2) prescribe, by portion of territory, the minimum distance between billboards, which distance may not exceed 90 m; and (3) prevent any construction, installation, alteration or repairs that are non-compliant, have them stopped and even provide for the demolition or removal of the billboard or sign . 157. La ville peut, par règlement : 1° régir ou interdire, par

partie de territoire, la construction, l’installation, la modification et l’entretien de tous panneaux-réclames et enseignes déjà érigés ou qui le seront à l’avenir et exiger, pour leur maintien ou leur installation un permis dont elle détermine le coût; 2° prescrire, par

partie de territoire, la distance minimale des panneaux-réclames entre eux, laquelle ne peut excéder 90 m; 3° empêcher toute construction, installation, modification et réparation qui ne sont pas conformes, les faire cesser et pourvoir même à la démolition ou à l’enlèvement du panneau- réclame ou de l’enseigne . [ 76 ] Section 157(1) therefore grants the City the power to prohibit, by portion of territory, the construction or installation of existing or future billboards. Section 157(3) authorizes the City to order the demolition or removal of non-compliant billboards. [ 77 ] The commercial advertisers essentially argue that according to s. 169 of

Schedule C to the Charter of Ville de Montréal , the borough council exercises the City’s powers under s. 157. [ 78 ] Therefore, for the purposes of the application of s. 157 of

Schedule C to the Charter of Ville de Montréal , the borough of P.M.- R. fully exercises the City’s authority over the P.M.-R. territory.

Section 157 allows P.M.-R. to regulate or prohibit billboards by “portion of territory”. This provision does not allow the borough to completely prohibit billboards throughout its territory. [ 79 ] In short, the commercial advertisers contend that the billboard ban is ultra vires the powers of the borough of P.M.-R. [ 80 ] In my opinion, the judge did not err in determining that the impugned provisions are intra vires . [ 81 ] Municipal by-laws are presumed valid. [69] If there is a reasonable

interpretation that supports their validity, it must be preferred. [70] [ 82 ] In principle, a municipality cannot completely prohibit a use without express legislative authorization. [71] [ 83 ] Even though s. 169 of

Schedule C to the Charter of Ville de Montréal delegates the exercise of the powers set out under s.157 to the borough council, the fact remains that the power to limit billboards is vested in the City , the only legal entity at issue in this case. [ 84 ] As authors Hétu and Duplessis write, [ translation ] “the borough is not a level of local government. It is another body within the municipality, like the municipal council or the executive committee, whose every power is exercised on behalf of the municipality ”. [72] [ 85 ] Moreover, in Dupuis c.

Montréal (Ville de) , the Superior Court stated that a borough plays an important role and has powers, [ translation ] “but is not, as such, a municipality, because it acts for the city or on its behalf or in its place in certain cases”. The Court added [ translation ] “that there is only one city, the city of Montreal. And this city has ‘a territory’, even though this territory is divided into boroughs ”. [73] [ 86 ] P.M.-R. is a “portion of the territory” of the City, as provided for in s. 10 and

Schedule B to the Charter of Ville de Montréal . The delegation of powers does not change this fact. [ 87 ] When P.M.-R. limited billboards, it was a prohibition by the City over a portion of its territory.

The limitation over P.M.-R.’s territory is therefore not a total prohibition on billboards throughout the entire City. [ 88 ] The delegation of certain powers to the boroughs should not be allowed to eviscerate the City’s powers as a whole. [ 89 ] The respondents submit that to interpret the words “portion of territory” as referring to a borough would have the effect of forcing the boroughs to consider the content of by-laws adopted by other boroughs to ensure that the overall result is not a total ban on billboards throughout the City’s territory, which is not permitted by the enabling legislative provisions. [ 90 ]

Section 85.5 of the Charter of Ville de Montréal grants the City council the power to repatriate jurisdiction to exercise any power assigned by law to all the borough councils, which includes the power to govern or prohibit billboards. [ 91 ] This provision would allow the City to remedy the highly hypothetical situation where all the boroughs had decided to ban billboards on their territory, which would result in a total prohibition of these billboards throughout the City’s territory. [ 92 ]

Section 85.5 of the Charter of Ville de Montréal shows that the power to govern or prohibit billboards, by portion of territory, is ultimately a municipal power of the City as a whole. The City’s overview with regard to urban planning, which includes signage, is also implemented through the adoption of its planning program. [74] In fact, there is only one planning program for the entire City. [ 93 ] The power to enact by-law provisions requiring the removal of existing billboards is expressly set out in s. 157(3) of

Schedule C

to the Charter of Ville de Montréal .

This provision states that the City (which includes a borough) may, by by-law, stop the use of non- compliant billboards and provide for their demolition. [ 94 ] There is no ambiguity in this regard. [ 95 ] Where the law allows a municipality to terminate vested rights, the municipality should compensate the person concerned or allow that person to amortize their rights. [75] [ 96 ] Here, given the nature of the rights concerned, i.e., the right to display a sign on a billboard, which can be removed and eventually relocated, the one-year period granted by the City to the commercial advertisers to recoup their investment and demolish the existing billboards on P.M.-R.’s territory is reasonable. [ 97 ] The respondents’ argument that the by-law provisions constitute a disguised expropriation must also be dismissed. [ 98 ] First, as I have just stated, the City has the express power to prohibit and remove billboards by portion of territory, and therefore, throughout the P.M.-R. territory. [ 99 ] Second, there is no [ translation ] “sterilization pure and simple”, [76] [ translation ] “absolute denial” or [ translation ] “true confiscation” [77] of the commercial advertisers’ rights.

They can validly display signs elsewhere on the City’s territory, in boroughs where billboards are still allowed. [ 100 ] For these reasons, I am of the view that the trial judge did not err in determining that the impugned by-law provisions are not ultra vires the provisions of the Charter of Ville de Montréal . [ 101 ] I would therefore dismiss the incidental appeal. 2.

Principal appeal [ 102 ] The City admits that the impugned by-law provisions infringe on freedom of commercial expression as protected by the Canadian Charter . [ 103 ] It should be noted that the judge chose to address the constitutionality of the provisions under the Canadian Charter , given that the protections under the Quebec Charter [ translation ] “are in practice subject to the same analysis”. [78] This method of proceeding is appropriate. [ 104 ] The issue is whether this infringement can be justified in a free and democratic society, in accordance with s. 1 of the Canadian Charter .

The framework for analyzing the state’s justification of a legislative or regulatory measure that infringes a Charter- protected right is well known. [ 105 ] First, the impugned measure must have a pressing and substantial objective. [79] [ 106 ] Second, “the means by which the objective is furthered must be proportionate”. [80] The proportionality inquiry comprises three components: (

i) rational connection to the legislative objective at issue, (2) minimal impairment of the protected right and (3) proportionality between the effects of the measure (including a balancing of its salutary and deleterious effects) and the stated legislative objective. [81] [ 107 ] Let us examine each of these criteria, applied to the case at bar.

Pressing and substantial objective [ 108 ] The pressing and substantial objective of the impugned by-law provisions is to prevent visual pollution. [82] [ 109 ] This objective is part of the City’s long-standing strategy, concerning P.M.-R. in particular, to improve the quality of the landscape for its citizens, which includes eliminating visual pollution to improve the quality of the pedestrian experience, enhance the urban landscape and redefine certain portions of the territory. [83] [ 110 ] I will address the specific components of this regulatory objective more fully during the proportionality analysis. [ 111 ] The respondents claim that the objectives identified after the by-laws at issue [84] were enacted—i.e., objectives other than the prevention and elimination of visual pollution—should be not considered. [ 112 ] In my opinion, enhancing the borough landscapes and the pedestrian experience, and improving the living environment in the sectors being redefined are not entirely different objectives from those considered at the time the by-laws were adopted. [85] [ 113 ] All these elements relate to the objectives initially identified, that is, to prevent and eliminate visual pollution, and do not amount to a [ translation ] “complete redefinition of the initial objective”, [86] but are instead parts of this objective. [ 114 ] As previously stated, limiting or prohibiting billboards on a borough territory is specifically authorized by the Charter of Ville de Montréal , which establishes the importance of the objective of preventing visual pollution. [ 115 ] Moreover, the validity of this objective has been recognized by the courts in several cases, including by the Supreme Court in R. v.

Guignard : To be sure, the prevention of visual pollution is a reasonable objective. The creation of zones is an appropriate urban planning exercise that is authorized by the Act and is very common in most municipalities. It is easy to understand the reasons that prompt municipalities

not to allow any kind of sign, in any place and at any time.

It is a matter of maintaining a pleasant environment for the residents. [87] [ 116 ] The judge was therefore correct to state that [ translation ] “preventing visual pollution is a reasonable, pressing and substantial objective” and that [ translation ] “there is no reason to question this determination here”. [88] [ 117 ] After the trial judge reached this conclusion, however, he backtracked at the last step of the proportionality test and questioned the legitimacy of the objective pursued by the impugned by-law provisions. [ 118 ] He said that the harm they sought to eliminate was [ translation ] “much less serious” and [ translation ] “much less complex” than, for example, smoking, that it appeared to be based on [ translation ] “an essentially ideological concept” and that the advantages sought were based on [ translation ] “an ideological bias on which urban planning method is preferable”. [89] [ 119 ] With all due respect, in so doing the judge erred in law. [ 120 ] As stated by the Supreme Court in Frank v.

Canada (Attorney General) , given that it is a threshold requirement, “ [ the pressing and substantial objective pursued ] is analyzed without considering the scope of the infringement, the means employed or the effects of the measure ”. [90] [ 121 ] Therefore, the judge could not indirectly annihilate the objective once its importance had been recognized. [ 122 ] Furthermore, by stating that the objective pursued by the impugned by-law provisions was based on an [ translation ] “ideological bias on which urban planning method is preferable” in his subsequent proportionality analysis, the judge usurped the role of the municipal legislator. [91] [ 123 ] I will revisit the impact of these errors when analyzing the steps of the proportionality test. [ 124 ] In short, the City discharged its burden of proving that the impugned by-law provisions had a pressing and substantial objective, that is, to prevent visual pollution, which includes improving the quality of the pedestrian experience, enhancing the urban landscape and redefining certain portions of the territory.

Rational connection [ 125 ] There is a rational connection between the objective of preventing visual pollution and limiting billboards, which are very large, very bright structures. This was established by the City with the assistance of its experts. [ 126 ] In her report, Ms. Marie-Claude Robert explained that billboards have a considerable visual impact. For their part, Ms. Claude Laurin and Mr.

Simon Lemieux noted that billboards [ translation ] “all have a lighting system so that they are always visible”, which contributes to [ translation ] “nuisances we are trying to reduce in residential areas”. [92] [ 127 ] This connection is supported by reason or logic. [93] It can be logically inferred from the fact that billboards have a considerable visual impact and are large and permanently lit that their removal and prohibition will contribute to preventing and eliminating visual pollution.

The City did not have to adduce any scientific evidence in this regard. [ 128 ] This case can be distinguished from the situation that existed in the Supreme Court judgment in R. v. Guignard , where no rational connection was recognized. [94] [ 129 ] The regulatory provision at issue in that case, adopted by the city of Saint-Hyacinthe, banned only advertising signs that expressly indicated the trade name of a commercial enterprise. Mr. Guignard had erected a sign on his own residential land to express his dissatisfaction with an insurance company.

Although just as polluting from a visual standpoint, other types of advertising signs were still allowed.

That is why the Supreme Court, in this very particular case, concluded that there was no rational connection. [ 130 ] Here, the impugned by-law provisions do not make this distinction: they ban and require all billboards to be removed, regardless of content. [ 131 ] Therefore, the judge was correct in concluding that [ translation ] “there was a causal connection between the infringement and the benefit sought”. [95] Minimal impairment [ 132 ] With all due respect, the judge erred in concluding that the impugned by-law provisions constituted a “maximum impairment” of freedom of expression. [ 133 ] The judge limited his consideration of the issue to the territory of P.M.-R.

As previously stated, however, the by-law provisions ban billboards on only a portion of the territory of the City.

Billboards are still allowed in many other portions of the territory, including in the boroughs of Ville-Marie and Côte-des-Neiges-Notre-Dame-de-Grâce. [96] [ 134 ] Indeed, the billboards on the P.M.-R. territory are only a very small percentage of all billboards found throughout the territory of the City. [ 135 ] According to the evidence at trial, in the Montreal metropolitan region, Astral Media Affichage has approximately 870 advertising surfaces, Outfront Media Canada LP has approximately 709 and Industries Jim Pattison ltée has approximately 550, for a total of 2,129 advertising surfaces.

The 50 advertising surfaces on P.M.-R.’s territory therefore represent 2.34% of this number. [97] [ 136 ] It should also be noted that the by-law provisions at issue do not limit posting as an accessory to a use through signs installed on commercial premises. [98] For example, a restaurant, hardware store or jewellery store can still display signs on their commercial

premises. [ 137 ] With respect to the commercial advertisers’ main use billboards, certain types of advertising signs are still allowed or may be authorized on the P.M.-R. territory.

The first paragraph of art. 487.1 of the Urban Planning By-law , created by the impugned by-law provisions, expressly provides for several exceptions, for example, advertising signs installed for a specific event, advertising signs for public, cultural, tourist and community purposes, for a set period, and also indoor advertising signs. [99] [ 138 ] Contrary to the judge’s conclusion, therefore, the impugned by-law provisions do not create a [ translation ] “total ban” on signage that has the effect of [ translation ] “suppressing [commercial] speech”. [ 139 ] Furthermore, it should be noted that the billboard ban enacted by the impugned by-law provisions is content-neutral . [100] Its aim is not to attack the content of the information protected by freedom of speech, but instead to eliminate visual pollution on a portion of the City ’s territory, that is, in P.M.-R.

As the Court of Appeal for Ontario wrote in Ontario (Minister of Transportation) v. Miracle , “the prohibition is based not on the sign’s content but on its location”. [101] [ 140 ] It should also be noted that the commercial advertisers filed no evidence from organizations or enterprises that purchased or benefitted from advertising space on their billboards, i.e., the true beneficiaries of the commercial freedom of speech. [ 141 ] In other words, the commercial advertisers raise the freedom of expression of others in support of their conclusions on the constitutional validity of the impugned provisions.

This significantly undermines their arguments on the scope of the infringement and the effects of the ban. [ 142 ] This situation is therefore different from those in the Supreme Court judgments in Ramsden v. Peterborough (City) [102] and R. v. Guignard [103] and that of the Court of Appeal of Quebec in Singh c.

R. , [104] where individuals affected by the bans raised their own freedom of expression (respectively, to publicly display discontent with an insurance company, to announce performances of their orchestra, or to announce the [ translation ] “Anarchist Bookfair”). [105] [ 143 ] For all these reasons, I find that the infringement on freedom of expression caused by the regulatory measures does not exceed what is reasonably necessary to achieve the objective of the by-laws, namely, to prevent and eliminate visual pollution on the territory of P.M.-R. [ 144 ] As the Court of Appeal of British Columbia wrote in Vancouver (City of) v.

Jaminer [emphasis added]: Roof-top signs, which by their nature must be large in size, significantly detract from the appearance of the skyline no matter where the building is located. A sign, for example, on a low building such as the Vancouver Block, could be seen from many of the surrounding blocks which are of lower elevation than the building and would obstruct the skyline from at least some of those locations.

A sign on the top of the new Wall Centre, located as it is at a very high elevation in the City, could be seen from, and would obstruct the skyline from, English Bay, as well as from locations in all other parts of the City. As Mr.

LeTourneux for the City argued, then, if one wished to restore the beauty of Vancouver’s skyline, the prohibition of roof-top signs was the only realistic way to do so . [106] [ 145 ] Those remarks are echoed here, as will be more amply discussed in the following section. [ 146 ] I am therefore of the opinion that the impugned by-law provisions minimally impair the freedom of speech protected by the Canadian Charter .

Proportionality between the effects of the measure and the legislative objective [ 147 ] This requires that the Court examine the effects of the measure to see whether the infringement of the right to freedom of expression is justified in a free and democratic society. [107] [ 148 ] The commercial advertisers claim that third parties suffer serious harm to their freedom of expression.

They did not, however, call any representatives of the Ministère des Transports, not-for-profit organizations, charitable or social foundations, or cultural or community enterprises to whom the commercial advertisers offer their billboards free of charge or at a low cost, to testify or otherwise present evidence to explain the potential effect on them of the billboard ban on the P.M.-R. territory. [ 149 ] As such, the judge’s inference that abolishing these billboards [ translation ] “would cause serious harm” [108] to these persons is largely not based on the evidence. [ 150 ] The judge correctly noted that this type of message represents only 5% of all messages posted.

Therefore, the vast majority of messages constitute commercial advertising.

A large part of the judge’s reasoning leading to a finding of disproportionality in this case is, however, based on this very low percentage of social or charitable messages. [ 151 ] The Supreme Court acknowledged the value of commercial freedom of expression. [109] It also acknowledged that the fact that the expression falls entirely within the commercial sphere is an element to consider when analyzing the justification. [110] [ 152 ] The errors committed by the judge in analyzing the preceding steps of the justification test, i.e., (1) the judge annihilating the objective of preventing visual pollution after concluding that it was pressing and substantial, and (2) the judge concluding that the infringement of the right to freedom of expression was the maximum infringement possible, inevitably vitiated his analysis of the effects of the impugned by-law provisions. [ 153 ] The judge visibly exacerbated the deleterious effects of these provisions while minimizing their salutary effects. [ 154 ] It is important to acknowledge the historical importance of billboard advertising, which is part of the Montreal landscape, as an inexpensive and legitimate form of expression allowing messages to be disseminated. [111] This was noted by the judge.

[ 155 ] While this logic may have existed at a certain time, the use of these large visual panels now represents but one of a multitude of other means to disseminate commercial advertising. [ 156 ] The limitation imposed by the borough of P.M.-R. covers only one of many modes of commercial expression.

It will still be possible for legal and natural persons who want to disseminate a message addressed specifically to residents of P.M.-R. to do so by way of the local newspapers, signs posted in various locations throughout the borough, and on the Internet and social media using targeted geographic campaigns. [112] [ 157 ] In addition, as previously discussed, billboards are still allowed in other boroughs of the City. [ 158 ] As to the salutary effects of limiting billboards, according to author Marc-André LeChasseur, [ translation ] “the size of the signs and the objective of preserving the heritage and architecture of a sector can constitute a measure and an objective that comply with the Canadian Charter ”. [113] [ 159 ] In this regard, he quotes the Court of Appeal of Ontario ruling in Stoney Creek (City of) v.

Ad Vantage Signs Ltd. , which reads [underlining and bold added]: The prevention of aesthetic blight will be of varying importance, depending on the particular character of the community . Obviously, the community interest is different in a heritage community than it is in a busy, urban centre.

In some communities, even a total prohibition of mobile and portable signs may well be justified . [114] [ 160 ] In the present case, the City established that a significant limitation on billboards was justified due to the unique character of P.M.-R. [ 161 ] The evidence established that P.M.-R. is a primarily residential borough with a very high population density.

Since the 1980s, it has been profoundly transformed from [ translation ] “a previous period of poorer and more working-class residents, with a higher number of renters and more industrial occupants”. [115] [ 162 ] It is now a neighbourhood largely known for its rich heritage and architecture.

The borough is very pedestrian- and bicycle- friendly, and has unique historical and cultural characteristics and landscapes. [116] [ 163 ] Municipal councillor Alex Norris testified about the unique built heritage and emblematic architecture of P.M.-R., citing as an example the presence of many buildings built prior to 1910. [117] [ 164 ] Ms. Claude Laurin and Mr.

Simon Lemieux described P.M.-R.’s energy, economic vitality and diverse cultural life as well as its abundance of restaurants, bars, boutiques, venues and hotels that line the main commercial arteries of this borough. [118] [ 165 ] The borough has become gentrified in recent years as an increasing number of young professionals, artists and students seeking a pleasant neighbourhood and quality of life have moved there. [119] [ 166 ] As previously stated, the enhancement of these characteristics is part of a long-standing strategy of the City for P.M.-R., to improve the quality of the urban landscape and the quality of the pedestrian experience, to enhance the urban landscapes and to redefine certain portions of the territory. [120] [ 167 ] It is true that a certain number of the billboards at issue in this case are located along a thin industrial strip on the northern tip of P.M.-R., between Van Horne Avenue and the Canadian Pacific railway tracks. [ 168 ] However, P.M.-R. and the City have undertaken steps to redefine and revitalize the territory, including this particular sector, which is an important gateway into P.M.-R., with Park Avenue and Saint-Laurent Boulevard. [ 169 ] The objective of these measures is to respond to the renewed interest in low-intensity commercial and residential development on a smaller scale. [121] The aim is to allow a mixed residential, commercial and low industrial use. [122] [ 170 ] In a borough or a municipality without any of these singular characteristics, limiting advertising signs might not be justified. [ 171 ] In this case, however, the deleterious effects of limiting and removing billboards on the P.M.-R. territory is proportional to the objective sought and the resulting salutary effects. [ 172 ] I would therefore allow the principal appeal, with legal costs, order the respondents to demolish the billboards in the borough of Plateau-Mont-Royal identified in exhibit P-8, grant them six months to comply with the order, and dismiss the incidental appeal, without costs.

SIMON RUEL, J.A. REASONS OF SCHRAGER, J.A.

I- INTRODUCTION [ 173 ] With a view to ridding the neighbourhood of visual clutter, [123] the council of Plateau Mont-Royal (“P.M.-R.”), one of the boroughs of the Appellant, City of Montreal (“City”), adopted by-laws, the combined effect of which was to ban billboards (existing and future) from its territory. Several advertising companies and two individuals (the “Respondents”) who lease rooftops to them where billboards are installed, have contested the validity of the by-laws.

Though several arguments were raised, the Court need dispose of only two on appeal of the judgment of the Superior Court: [124] 1) did the borough have jurisdiction under the enabling legislation to adopt the by-laws, that is, are the by-laws intra vires of the legislation (raised in the incidental appeal); and 2) do the by-laws constitute an unreasonable infringement on freedom of expression so as to make them invalid pursuant to the application of the federal and provincial charters of rights and freedoms (raised in the principal appeal)? [ 174 ] I respectfully disagree with the position of my colleague Justice Ruel on both of these questions.

II- FACTS [ 175 ] On July 5, 2010, there were 45 existing billboards in P.M.-R. when its council adopted By-law 2010-10 [125] – resolution number CA-10250210 indicating the council’s desire to prohibit billboards in order to avoid the proliferation of visual clutter. Thirty- eight such signs remained in 2016 when the matter was tried in Superior Court. [ 176 ]

Section 1 of By-law 2010-10 introduced new

section 487.1 in the Règlement d'urbanisme de l'arrondissement Plateau-Mont- Royal (numéro 01-277) (“ P.M-R.’s Urban Planning By-law ”) as follows: 487.1. Toute enseigne publicitaire est prohibée sur l’ensemble du territoire, à l’exception d’une enseigne publicitaire visée par les chapitres IV et V du

titre V du présent règlement. Toutefois, une enseigne publicitaire existante peut être maintenue, même si elle est prohibée par l’alinéa précédent, si elle était conforme à la réglementation avant l’entrée en vigueur du présent

article ou, si elle n’y était pas conforme, elle était protégée par droits acquis. Une telle enseigne ne peut être modifiée, déplacée ou remplacée. [ 177 ] Exceptions to the total ban (by way of permitted signage) are found in sections 526, 537, 538 and 539 of P.M-R.’s Urban Planning By-law as adopted on December 17, 2001, and amended throughout the years, notably by By-law 2010-10 and By-law 2010- 14 . [126] They are cited at length in the reasons of my colleague so that I do not include them here.

Suffice it to say that the borough council can permit signage announcing such things as special events or demonstrations (section 526(1)), cultural or tourist events (section 526(5)) or the like. Also permitted are interior signs (section 537(1)), as well as signage not visible from the public domain or from a neighbouring property (section 537(13)), signage made up of living plants (section 537(4)) [127] and signage announcing a place of business (section 537(9)).

I do not consider that any of the exceptions impact directly on the issues before us for decision. [128] [ 178 ] On September 7, 2010, the borough council adopted, inter alia ,

section 12 of By-law 2010-14 as follows: 12.

L’article 487.1 [du Règlement d’urbanisme ] est modifié par le remplacement de son deuxième alinéa par le suivant : L’interdiction édictée au premier alinéa s’applique également aux enseignes publicitaires existantes, lesquelles doivent être enlevées dans les douze (12) mois de l’entrée en vigueur du présent alinéa. [129] Sections 13 and 14 of the same by-law seek to eliminate any claim to acquired rights with respect to existing signage. [130] [ 179 ] The evidence indicates that the adoption of a by-law prohibiting signage ( By-law 2010-10 ) followed by one eliminating acquired rights ( By-law 2010-14 ) had as its purpose the total ban of billboards from the territory of P.M.-R. [131] [ 180 ] The judge found that By-law 2010-10 and By-law 2010-14 were intra vires the power of the borough council, but that they are invalid because they create an unreasonable infringement of the freedom of expression. [ 181 ] The Respondents also argued that the by-laws constituted a disguised expropriation of their property.

The judge rejected this argument which, although raised as a ground of appeal in the incidental appeal, does not require resolution given my position on the other grounds. III- DISCUSSION [ 182 ] In my opinion, the provisions under review are ultra vires of the regulatory power of the borough delegated to it under the Act respecting land use planning and development [132] and the Charter of Ville de Montréal , metropolis of Québec [133] because they constitute a total ban or prohibition of billboards in the territory of the borough of P.M.-R., which is not permitted under the legislation.

This conclusion leads me to disagree with the trial judge on the question of vires , such that the incidental appeal should succeed. [134] However, I agree with the trial judge’s analysis under

section 1 of the Canadian Charter of Human Rights and Freedoms [135] that the by-laws constitute an unreasonable infringement on freedom of expression. Consequently, albeit in a subsidiary fashion, I would dismiss the principal appeal.

a) Standard of review

i) Ultra vires [ 183 ] A municipality’s power to adopt by-laws is derived from the power delegated to it by the provincial legislature so that it may only adopt by-laws to the extent permitted by the enabling legislation and in compliance therewith. [136] Thus, the City’s power to regulate pursuant to

section 157, of

Schedule C of the City Charter and section 113(14) of the Act is rooted in and limited by those statutory provisions. [137] [ 184 ] Accordingly, in examining the vires issue of

section 487.1, the judge was tasked with measuring its conformity with

section 157, of

Schedule C of the City Charter and section 113(14) of the Act . [138] This exercise involves a question of law, such that the standard of review is correctness, where an appellate court can substitute its opinion for that of the trial judge when he has erred in law. [139] [ 185 ] For the reasons which follow,

section 487.1 of P.M-R.’s Urban Planning By- law, as amended, is ultra vires , such that the judge erred in finding that it is intra vires the borough’s jurisdiction.

This error is one of law justifying this Court’s intervention. ii) Constitutional analysis [ 186 ] As a general rule, [140] constitutional challenges, as in the case at bar in the principal appeal are decided on a fact-specific, contextual basis and certainly not in a factual vacuum. [141] Because the court’s analysis is contextual, it requires close attention to detail and factual setting. [142] As such, the measure of any enactment against the Oakes [143] test will give rise to mixed questions of fact and law.

Accordingly, barring a palpable and overriding error, an appellate Court is bound by the trial judge’s factual conclusions including those on “social and legislative facts”. [144] [ 187 ] In Bedford , the Supreme Court of Canada was categorical that a trial judge’s findings on social and legislative facts command the same deference as any other finding of fact. [145] This was reaffirmed in Carter in the strongest of terms: [109] (…). In Bedford , this Court affirmed that a trial judge’s findings on social and legislative facts are entitled to the same degree of deference as any other factual findings (para. 48).

In our view, Canada has not established that the trial judge’s conclusion on this point is unsupported, arbitrary, insufficiently precise or otherwise in error. At most, Canada’s criticisms amount to “ pointing out conflicting evidence ”, which is not sufficient to establish a palpable and overriding error (Tsilhqot’in Nation, at para. 60). We see no reason to reject the conclusions drawn by the trial judge. They were reasonable and open to her on the record . [146] [109] […].

Dans Bedford , notre Cour a affirmé que les conclusions d’un juge de première instance relatives à des faits sociaux et législatifs commandent la même déférence que toute autre conclusion de fait (par. 48). À notre avis, le Canada n’a pas établi que la conclusion de la juge de première instance sur ce point ne repose sur rien, qu’elle est arbitraire, insuffisamment précise, ou qu’elle est erronée pour une autre raison.

Les critiques du Canada ne servent tout au plus qu’à « souligner le caractère contradictoire de la preuve », ce qui ne suffit pas à établir l’existence d’une erreur manifeste et dominante (Nation Tsilhqot’in, par. 60). Nous ne voyons aucune raison de rejeter les conclusions auxquelles est arrivée la juge.

Ces conclusions étaient raisonnables compte tenu du dossier . (Emphasis added) [ 188 ] This Court should not substitute its view for that of the trial judge on what we think the evidence establishes on a balance of probabilities, unless we conclude that the judge was palpably or clearly wrong. [147] [ 189 ] In my opinion, the judge’s factual findings underpinning his conclusion that the City significantly infringed freedom of expression are conclusions with respect to facts, including social and legislative facts.

The scope and extent of visual clutter and P.M.- R.’s purpose in adopting the by-laws are also, and obviously, purely factual questions. [148] [ 190 ] Such conclusions merit the same deference as any other findings of a factual nature by trial judges such that only palpable and overriding errors merit appellate intervention. That another judge might view the factual matrix differently does not indicate that this judge’s conclusions are unreasonable. The fact that the context involves a constitutional challenge of a statutory enactment does not alter these principles. [149]

b) The incidental appeal and the ultra vires argument [ 191 ] The enabling legislation is found both in the City Charter and in the Act :

Schedule C of the City Charter : 157. The city may, by by-law, 157. La ville peut, par règlement: (1) govern or prohibit, by portion of territory , the construction, installation, alteration and maintenance of all existing or future signs and billboards, and require for their maintenance or installation a permit of which it shall determine the cost; 1° régir ou interdire, par

partie de territoire , la construction, l’installation, la modification et l’entretien de tous panneaux-réclames et enseignes déjà érigés ou qui le seront à l’avenir et exiger, pour leur maintien ou leur installation un permis dont elle détermine le coût;

(2) prescribe, by portion of territory, the minimum distance between billboards, which distance may not exceed 90 m; and 2° prescrire, par

partie de territoire, la distance minimale des panneaux-réclames entre eux, laquelle ne peut excéder 90 m; (3) prevent any construction, installation, alteration or repairs that are non-compliant, have them stopped and even provide for the demolition or removal of the billboard or sign. 3° empêcher toute construction, installation, modification et réparation qui ne sont pas conformes, les faire cesser et pourvoir même à la démolition ou à l’enlèvement du panneau- réclame ou de l’enseigne. (Emphasis added) The Act 113.

The council of a municipality may adopt a zoning by-law for its whole territory or any part thereof. 113. Le conseil d’une municipalité peut adopter un règlement de zonage pour l’ensemble ou

partie de son territoire. (…) […] (14) to regulate, by zone , the construction, erection, alteration and maintenance of all bill - boards and signs already erected or to be erected in the future; 14° régir, par zone , la construction, l’installation, le maintien, la modification et l’entretien de toute affiche, panneau-réclame ou enseigne déjà érigé ou qui le sera à l’avenir; (Emphasis added) [ 192 ] The zoning power created in virtue of this legislation is, with respect to the City, delegated to its borough councils in virtue of

section 131 of the City Charter and

section 169 of

Schedule C of the City Charter , both of which provide that: “The borough council shall exercise the jurisdiction of the city…”/“ Le conseil d’arrondissement exerce les compétences de la ville ... ” with regard to the zoning power contained in those provisions. [ 193 ] Thus, under section 157(1) of

Schedule C of the City Charter , the borough of P.M.-R. can prohibit signage “by portion of territory”.

Under section 113(14) of the Act , it may “regulate” billboards “by zone”. [ 194 ] The case law is firm and long established that the power to regulate by zone does not include the power to prohibit a lawful use of property throughout the territory of a municipality. [150] Even where a prohibition is implicit (by not permitting a lawful use anywhere in the municipality), the courts have sanctioned such exercise of regulatory power as unlawful or inoperative, given its effect of total prohibition. [151] Even zoning by-laws which permit commercial advertising only in limited less travelled parts of a city have been treated as total bans attracting a declaration of constitutional invalidity under the Canadian Charter . [152] [ 195 ] The judge relies on Magog (Ville de) v.

Restaurants McDonald’s du Canada ltée , [153] where the municipal by-law in question required that both existing and future signs respect the new norms of size and appearance. The issues dealt with in that case were regulation, not prohibition, as well as retroactivity and acquired rights. There was no issue of delegation of a power to prohibit “by zone”. This is the point with which I take issue in the case at bar, in the

interpretation of the by-laws in question and, as such, I do not find applicable authority in the Magog case. [ 196 ] The power exercised by the borough councils is the power to regulate billboards by zone ( Act ) or to prohibit by portion of territory ( City Charter ). The delegation (or actually sub-delegation) cannot transform a power to regulate or prohibit by territorial division into a power to prohibit throughout the territory of the regulating body.

Delegated power should be strictly confined to the parameters of the enabling statutory instrument. [154] The power should certainly not be expanded by the fact of delegation. Sections 130 and 131 of the City Charter provide that the necessary modifications be read into the City Charter and the Act regarding a borough’s exercise of, inter alia , zoning power. However, clear wording would be required, in my view, to change the enabling legislation that provides for regulation or even prohibition “by zone” or “portion of territory” so that the borough could prohibit billboards on all of its territory. [ 197 ]

Section 487.1 of P.M-R.’s Urban Planning By-law prohibits billboards throughout the territory over which the borough council of P.M.-R. has regulatory authority. This encompasses the entire geopolitical limit of the borough; it is the full extent of what could be regulated by the borough and, as such, amounts to a total prohibition, which is not permitted by the enabling legislation.

The borough would have to regulate or prohibit “by zone” or by “portion of its territory”. [ 198 ] The City argues, and my colleague agrees, that there is but one legal entity, which is the City of Montreal, acting here through a borough council, so that it is in effect the City that is regulating by zone or prohibiting by portion of territory when the borough adopts such a by-law with effect throughout its territory.

The logic is that since the borough council has banned billboards throughout the borough, then the City has prohibited the billboards on a part only of its territory, an exercise of power intra vires of the enabling legislation. [ 199 ] I disagree. It is not the number of legal entities or the legal status of a borough that is important, but rather the bodies that have jurisdiction or power to regulate according to law, even if they do not constitute independent legal entities.

Though the boroughs may not have independent legal status, in certain regards they act and are entitled to act by law as if they are independent legal entities, such as the adoption of certain by-laws (as in the present case) or even the power to institute and defend legal proceedings. [155] What is significant is that the boroughs have power to adopt by-laws over certain subjects independent of the central municipal council. The exercise of such power must be strictly limited to that permitted by the enabling legislation. [ 200 ] The process of delegation should not affect the manner in which

section 157 of

Schedule C of the City Charter and section 113(14) of the Act are read or applied. As mentioned, the case law is well-established that even implicit and indirect total bans will not be given effect by the courts. [156] I do not see why we would read into the delegation that this is the manner in which the City is

prohibiting by zone. The City is not prohibiting; indeed, it is not passing any by-law at all. The borough is regulating and should do so by “zone” or “portion of territory”. [ 201 ]

Section 85.5 of the City Charter gives the council of the City the ability to repatriate jurisdiction, attributed to the borough councils by the City Charter . In this manner, the City could repatriate the power to pass by-laws under

section 157 of

Schedule C of the City Charter or section 113(14) of the Act and establish zones where billboards are not permitted. One might speculate that such zoning might result in billboards being prohibited throughout P.M.-R. if it is an appropriate and reasonable zone. It is not, however, open as a legal argument in this case to submit that “the City could do it anyway”. The City has not exercised this power under

section 85.5 of the City Charter and such argument does not change a proper reading of

Article 157,

Schedule C of the City Charter and section 113(14) of the Act as applicable to the facts of this case. [ 202 ] The logical proof that my colleague’s reading of these provisions is incorrect is that, if all boroughs were to impose a ban on their territory, then there would be, in the aggregate, a total ban in the City. However, the jurisdiction is to regulate by “zone” or “by portion” of the territory. In such manner, the legislation would in effect be altered and, indeed the jurisdiction increased by way of the delegation.

The power to regulate or prohibit by zone that is delegated by the provincial legislature cannot be increased or extended because of the manner in which it is exercised – i.e. through the borough councils. [ 203 ] Not only does the

interpretation and application of

section 157 of

Schedule C of the City Charter and section 113(14) of the Act proposed by the City not stand up to legal analysis, it does not pass the scrutiny of a textual analysis. For instance, if every borough of the City but one adopted a total ban on billboards in its territory as did the P.M.-R., then the last borough would presumably be precluded from adopting a total ban within its geographic limits because then the ban, in the City as a whole, would be total and thus, not permitted.

In this manner, the regulatory power delegated to or exercised by the last borough would, in effect be different and less encompassing than the power delegated to the other boroughs. This is a reductio ad absurdum of the City’s reading of

section 157 of

Schedule C of the City Charter and section 113(14) of the Act . The identical text would mean something different if the last borough were to act. [ 204 ] Consequently, I propose to allow the incidental appeal (with legal costs), reverse the trial judge’s decision and declare that

section 487.1 of P.M-R.’s Urban Planning By-law as introduced by

section 1 of By-law 2010-10 and amended by

section 12 of By-law 2010-14 as well as sections 13 and 14 of By-law 2010-14 amending Division X of

Chapter I of Title VII of P.M-R.’s Urban Planning By- law , are ultra vires , and thus invalid.

c) Principal appeal [ 205 ] The principal appeal lodged by the City seeks the reversal of the portion of the judgment wherein the judge concludes, in the extract reproduced below, that

section 487.1 of P.M-R.’s Urban Planning By-law , as introduced by By-law 2010-10 and amended by By- law 2010-14 constitutes an unreasonable limitation on freedom of expression and is invalid because it contravenes the Canadian Charter [157] as well as the Quebec Charter of human rights and freedoms : [158] [324] DÉCLARE que l'article 487.1 du Règlement d'urbanisme de l'arrondissement Plateau-Mont-Royal 01-277, tel qu'inséré par l'article 1 du Règlement 2010-10 et modifié par l'article 12 du Règlement 2010-14, de même que les articles 13 et 14 du Règlement 2010- 14 venus modifier la

section X du

chapitre I du

titre VII du Règlement d'urbanisme de l'arrondissement Plateau-Mont-Royal 01-277 sont nuls et inconstitutionnels parce que contrevenant au droit à la liberté d'expression prévu à l'

article 2

b) de la Charte canadienne des droits et libertés et à l'

article 3 de la Charte des droits et libertés de la personne et ne peuvent se justifier en vertu des articles 1 de la Charte et 9.1 de la Charte québécoise ; [ 206 ] The judge’s reasons are expressed in a lengthy, detailed and cogent analysis of the evidence and the applicable law. The evidence consisted of the testimony of 16 witnesses at trial, including 7 experts together with an abundant documentary record administered before and during the 6-day hearing. I agree with the judgment and, in any event, I do not identify any reversible error on

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