Ontario’s Divisional Court says the City of Hamilton acted reasonably when it decided not to permit a bus shelter political ad regarding gender issues from the Christian Heritage Party in 2023.
In late January 2023, the CHP sought to promote its position regarding gender issues and submitted a bus shelter ad purchase to the City.
The ad stated, “Woman: An Adult Female. Bringing Respect for Life and Truth to Canadian Politics[.] The Christian Heritage Party of Canada” and included an image of a young woman. The ad promoted the CHP’s toll-free number and website.
The City’s advertising agent, OUTFRONT Media, declined to run the ad.
In late March 2023, the CHP appealed the decision to the City of Hamilton.
During the following three months, the City weighted its decision, including conducting a Charter analysis and consulting with the CHP and stakeholders in Hamilton’s LGBTQ+ community.
The exchanges, detailed in the court ruling, show the City of Hamilton engaged in reasonable analysis and communication – including asking if the CHP would consider amending their advertisement.
On July 6, 2023, the City issued its decision declining to run the advertisement.
The decision, citing academic studies and City policies, stated the ad would jeopardize the City’s ability to provide a safe and welcoming transit system.
The City’s reasons ended by stating: “In coming to this decision, we have been faced with a dichotomy: either accept the advertisement for publication or reject it. There does not appear to be a middle ground. However, if you believe there is a way to minimize the infringement of CHP’s right to freedom of expression short of accepting the advertisement as submitted, we welcome your suggestions. ”
Judicial Review for Reasonableness
CHP filed an appeal to Ontario’s Divisional Court for judicial review of the decision.
Following the 2019 Supreme Court of Canada decision Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Divisional Court had to determine if the decision was reasonable and the outcome a reasonable option available to the City of Hamilton.
This is the first post-Vavilov case involving the City of Hamilton in which the City provided comprehensive reasons for the Court to review.
(In 2023, the City of Hamilton conceded a case after not providing reasons.)
Three Judges Agree: The City’s Decision was Reasonable
Justices Paul B. Schabas, Richard A. Lococo, and Michael G. Emery jointly agreed the City met the tests of law and had adequately considered the CHP’s free expression rights against the City’s rights and interests, and those of the transgender and non-gender conforming persons.
“The City balanced its statutory interest (in providing a public transit system that was safe and welcoming for all people) against CHP’s Charter protected right to freedom of speech, especially political speech,” the Justices wrote.
“The City made extensive submissions about the legal and social status of and challenges faced by transgender and non-gender conforming individuals.”
“The City’s decision is reasoned, fair and balanced with respect to the CHP’s rights and the City’s statutory obligations and policies. It falls within a range of reasonable, acceptable outcomes.”
The CHP and City agreed to $35,000 in costs, which the CHP must pay by December 12.
Production Details v. 1.0.1 Published: November 14, 2024 Last updated: November 14, 2024 Author: Joey Coleman Update Record v. 1.0.0 original version v. 1.0.1 headline amendment - the original post had extra text "at issue, an ad about women" transferred from a draft