When the Montreal borough of Côte-des-Neiges–Notre-Dame-de-Grâce (CDN-NDG) decided to tackle obesity and junk food by limiting fast food establishments in its territory, she had no idea that her “health objective” for her citizens would be challenged all the way to the Supreme Court. Its recent legal victory paves the way for other municipalities to draw the outlines of healthier living environments.
This is the first judgment of this court which confirms the power of a Quebec municipality to regulate junk food in this way.
The Borough’s approach was highly creative: using a zoning by-law, a tool used to control land use, to achieve its ends. The clearly stated goal was to “promote health and healthy lifestyles,” including severely restricting the areas where new fast-food restaurants can locate — and keeping them away from schools.
CDN-NDG’s bylaws provide a definition of “fast food restaurant” that includes three characteristics, namely the predominance of disposable packaging or plates in which meals are served, on-site consumption and the absence of table service.
But as soon as the settlement was passed in 2016, A&W, McDonald’s and its cronies, aided by the Restaurants Canada Association, a Toronto-based industry group, went to the barricades and challenged the settlement in court.
For them, the process was illegal: it is not zoning, they denounced, because CDN-NDG aims to regulate the food and consumption habits of citizens, which a municipality does not have the power to do.
There is no “misuse of power” here, the Court of Appeal told them last November: the promotion of healthy lifestyles is a consideration that a municipality is completely free to take into account when exercising power to zone.
The restaurant group also argued that the by-law is discriminatory because it arbitrarily distinguishes between two types of restaurants.
“In essence, a zoning by-law is discriminatory,” wrote the trial judge without emotion. Refusing to give up, the restaurants argued that the avowed purpose of the rule is “so irrational as to become invalid”. If you want to avoid unhealthy foods, why specifically target one type of establishment? “A poutine,” they wrote in their appeal brief, “is not healthier because it […] is served at the table on a porcelain plate. »
The Court of Appeal also rejected this argument. While it’s conceivable that fast-food outlets could provide a healthy food offering, she writes, “such establishments are the exception, not the rule.”
“Indeed, it is judicial knowledge that most of these establishments mainly offer food and beverages whose nutritional value is generally low and whose regular consumption contributes to increasing the risk of obesity and other health problems. . »
By refusing to hear the restaurants’ appeal, the Supreme Court upheld the validity of the impugned by-law, as the two previous courts had done.
Behind the scenes of victory
The Quebec Coalition on Weight Issues (Weight Coalition), which has been interested in this issue for years, welcomed the Supreme Court’s judgment. It is clear: “a municipality can take action to promote healthy lifestyles”.
The question arose because fast-food restaurants were setting up near schools, recalls Ms.and Marc-André LeChasseur, specialized in municipal law in particular with the firm Bélanger Sauvé.
These restaurants cannot be completely prohibited in a municipality, but may be in certain sectors. However, those who are already there have the right to remain there.
Mand LeChasseur is also the main author of a guide that the Coalition had requested to identify how to legislate junk food.
“I said, ‘you can’t regulate the menu or the calories, but you can regulate the restaurants based on what they are.’ »
For him, it was obvious. This has been done for years in the United States, in a country where the “right to trade” is nevertheless firmly protected by the Constitution.
The innovation in Quebec is to have “sub-categorized” fast-food restaurants, to which zoning, and therefore specific regulations, could apply, specified the lawyer, who is also a professor of labor law. land use planning at the School of Urban Planning at McGill University.
It’s based on the type of services “they got stuck, not by the menu”. Normally, it is the province that has jurisdiction to legislate for public health. But using zoning for health purposes went without saying for the lawyer: “Zoning was invented so that people would stop dying! At the time, poisonous factories were prohibited in this way near homes, for example.
A legal challenge is never 100% avoidable, but the judgment has cemented the position of municipalities in Quebec who will want to zone in this way.
“We have all the legal bases to confirm that municipalities can act for health, even in terms of food. That it is in their fields of competence”, rejoiced Corinne Voyer, the director of the Weight Coalition.
It was less clear when the Association pour la santé publique du Québec, which sponsors the Coalition, carried out a pilot project in 2009 in three cities — Gatineau, Baie-Saint-Paul and Lavaltrie — which aimed to limit the supply of junk food around schools using zoning.
“We had tested the waters, to see if it was possible. »
Hit with formal notices, they had retreated, recalled Mand The hunter.
“At the time, social support was perhaps not there, political support either,” recalls Ms.me See. But she believes that this project helped bring the idea to fruition, which was notably taken up in the early 2010s by CDN-NDG.
” Excellent news “
The current mayor of this district, Gracia Kasoki Katahwa, described the judgment as “excellent news for citizens and for society in general”.
He comes “to say that the local government, which manages the daily lives of citizens, has the power and the responsibility in a way to put in place public policies that promote healthy lifestyles”. Because the opposite, “it is expensive in the end for health,” said the mayor, who is also a nurse. It has been collecting the thanks of its citizens on this subject for a few days, she confided.
She recalls that, while there was a lot of talk about junk food with this by-law, it also talked about green spaces and community gardens — always with the aim of promoting health.
The judgment comes at the right time, said the mayor, since her borough is preparing for an overhaul of its urban planning regulations.
If the legal challenge to the settlement created uncertainties, the judgment “confirms us [dans l’idée] that we can continue in this direction. We will be able to be more innovative and creative with the powers conferred on us to promote this type of public policy”.