COURT OF APPEAL FOR ONTARIO

CITATION: Galganov v. Russell (Township), 2012 ONCA 409

DATE: 20120615

DOCKET: C52704

BEFORE: Weiler, Sharpe and Blair JJ.A.

BETWEEN

Howard Galganov

Applicant (Appellant)

and

The Corporation of the Township of Russell

Respondent

BETWEEN

Jean-Serge Brisson

Applicant (Appellant)

and

The Corporation of the Township of Russell

Respondent

COUNSEL:

Brian A. Crane, Q.C., Guy Régimbald and Matthew Estabrooks, for the appellants Howard Galganov and Jean-Serge Brisson

Ronald F. Caza and Marc Sauvé, for the respondent

Chris Schafer, for the intervener Canadian Constitution Foundation

Heard: February 2, 2012

On appeal from the judgment of Justice Monique Métivier of the Superior Court of Justice dated August 20, 2010, with reasons reported at 2010 ONSC 4566, 325 D.L.R. (4th) 136.

Weiler J.A.:

A. Overview

[1] Howard Galganov and Jean-Serge Brisson appeal from the judgment dismissing their applications to quash a by-law passed by the Township of Russell (the “Township”), a municipality located on the eastern outskirts of Ottawa. The Township has a population of 13,883 and consists of four main communities: Embrun, Russell, Limoges and Marionville. The Township, which has a significant Francophone population, also offers its services to the public in French and English.

[2] The by-law in issue, no. 49-2008, (the “By-law”) requires the content of any new exterior commercial signs to be in French and in English, although the actual name of a business may be unilingual.

[3] The application judge dismissed Galganov’s application on the basis that he did not have standing to bring it as he did not reside, own property or operate a business in the Township and he did not have any specific interest in the By-law nor was he directly affected by it.

[4] The application judge held that Brisson had standing as he carried on a business in the Township and had a direct interest in the By-law. She therefore dealt with the substance of Brisson’s application and held that the By-law was intra vires the Township’s statutory authority under the Municipal Act, 2001, S.O. 2001, c. 25 (the “Act”). She then turned to the issue of whether Brisson’s rights under the Canadian Charter of Rights and Freedoms were infringed. In doing so, she held that the By-law was aimed at protecting, promoting and recognizing the equal status of French and English. The application judge concluded that the requirement that Brisson’s sign describing his services be in English as well as in French was not an infringement of his right to freedom of expression under s. 2(b) or of his equality rights under s. 15(1) of the Charter nor was there a breach of international law. If necessary, she would have held that any infringement was justified under s. 1 of the Charter.[^1]

[5] The issues on this appeal are: (1) whether Galganov has standing to apply to quash the By-law; (2) whether the By-law is ultra vires the Township’s authority; (3) if intra vires, (a) whether the By-law infringes freedom of expression as guaranteed by s. 2(b) of the Charter and, (b) if there is an infringement, whether the limit on freedom of expression is justified under s. 1 of the Charter.[^2]

[6] For the reasons that follow, I would uphold the application judge’s conclusion that Galganov does not have standing to apply to quash the By-law and, for that reason, dismiss his appeal.

[7] I would also dismiss Brisson’s appeal. I agree with the application judge’s conclusion that the Township had the authority to pass the By-law. Insofar as the issue of whether Brisson’s right to freedom of expression under s. 2(b) of the Charter is infringed, I am of the opinion that the application judge erred in concluding that there was no infringement. However, I conclude that this infringement is justified under s. 1 of the Charter.

[8] For ease of reference, the text of the relevant statutory provisions is found at Appendix “A” to these reasons.

B. Analysis

(1) Whether Galganov has standing to apply to quash the By-law

[9] Section 273(1) of the Act provides that “any person” may apply to quash a municipal by-law.

[10] The application judge found that Galganov does not live, own property or carry on a business in the Township. Before the By-law was passed, he arranged to rent space in a barbershop window in Russell and leaned a hand-written sign in the window stating: “Galganov Consulting”. The content of the sign was written entirely in English. Notwithstanding the use of the words “any person” in s. 273(1), the application judge held, following prior jurisprudence, that the court has the discretion to refuse to grant standing where a person has not shown any particular personal interest in a by-law and is not directly affected by it.

[11] Galganov makes three arguments to support his standing claim. First, he relies on the plain wording of s. 273(1), which says that “any person” may apply to quash a by-law. Second, assuming that the court has the discretion to refuse to grant standing, Galganov submits that he is directly affected because his sign in the barbershop window is an “exterior commercial sign” located within the boundaries of the Township’s jurisdiction and is therefore subject to the By-law. Third, even if he was not affected by the By-law, Galganov submits that the application judge had the residual discretion to grant him standing and she ought to have done so.

(a) Whether “any person” can apply to quash a by-law

[12] The Act does not define the words “any person” beyond stating that the term “person”includes “a municipality unless the context otherwise requires” in s. 1(1). Nor have the words “any person” received any specific judicial interpretation.

[13] Prior to the coming into force of the Act, “a resident of the municipality” or “a person interested in a by-law” had the right to apply to quash a by-law: Municipal Act, R.S.O. 1990, c. M.45, s. 136(1), as repealed by Municipal Act, 2001, S.O. 2001, c. 25, s. 484(1). A ratepayer had an implied interest in the by-laws of the municipality in which he or she paid taxes. The corporation of a municipality (or any of its ratepayers) could also apply to quash the by-law of another municipality if it could show that it was injuriously affected by the by-law: see Ian MacFee Rogers, The Law of Canadian Municipal Corporations, 2d ed., looseleaf (Toronto: Carswell, 1971), vol. 2, at para. 191.3.

[14] In repealing the prior version of the Municipal Act and adopting the term “any person”in the Act, the legislature discarded the restrictive “pigeon hole” approach to standing in which it had explicitly included certain connecting factors, such as residency, or being a ratepayer, in favour of the broader phrase “any person”.

[15] I do not accept the respondent’s submission that the Act’schange in wording allowing “any person” to bring an application was merely procedural. However, in using the words “any person”, the legislature did not eliminate the principled exercise of judicial discretion respecting standing. As noted by the application judge, at para. 101 of her reasons:

Standing is sometimes denied for a variety of reasons which may impact the exercise of discretion by the court. Some are listed in the text by P.W. Hogg, Constitutional Law of Canada,5th ed, v. 2 looseleaf (Toronto: Carswell, 2007) at pp. 59-3; and in Finlay v. Canada (Minister of Finance), 1986 CanLII 6 (SCC), [1986] 2 S.C.R. 607 at paragraphs 32-35:

(a) to avoid opening the flood gates to unnecessary litigation;

(b) to screen out the mere busy body;

(c) to ration scarce judicial resources by applying them to real rather than hypothetical disputes; and

(d) to avoid the risk that cases will be inadequately presented by parties who have no real interest in the outcome. [Citations in original.]

Thus, the court maintains the discretion to refuse to grant standing in accordance with the common law rules respecting standing. The words “any person” in s. 273(1) of the Act mean “any person who has standing under the common law relating to standing.”

(b) Whether Galganov has standing

[16] Galganov submits that he is a person directly affected by the By-law because he carries on a business within the Township. The application judge rejected this submission. She found, at para. 115 of her reasons, that: “The placement of a hand-lettered sign in the barbershop window does not qualify as operating a business.” She noted that Galganov’s evidence was that he was not paid for any advice he might give when contacted by people and that most contacts related to the litigation in issue. I agree that Galganov was not carrying on a business within the Township. The application judge properly exercised her discretion to refuse to grant Galganov standing because he was not affected by the By-law.

(c) Whether, although Galganov had no connection to the By-law, the court should have granted him standing because of his Charter claim

[17] Galganov submits that “[t]he Court always has a residual discretion to grant standing, particularly in cases involving Charter claims.” Because Galganov claims that his right to freedom of expression under s. 2(b) of the Charter is being infringed, he submits the application judge ought to have granted him standing.

[18] The argument Galganov makes was dealt with by the application judge’s decision not to grant him public interest standing. Galganov has chosen not to appeal this holding.

[19] Accordingly, I reject Galganov’s standing claim and would dismiss his appeal.

[20] On appeal, there is no question as to Brisson’s standing to apply to quash the By-law; he operates a business in the Township. Thus, I will consider the substance of his appeal in respect of the remaining issues.

(2) Whether the By-law is ultra vires the Township’s authority under the Act

[21] For ease of reference, the text of the By-law is as follows:

Section 2.1: Message or content of any new exterior commercial signs

The message or content of any new exterior commercial signs shall be bilingual. The lettering of an exterior commercial sign (dimension and style) must be identical in French and in English. However, the name of a business can be unilingual for an exterior commercial sign.

[22] The application judge concluded that the By-law was intra vires as it came within the power of the Township under s. 11(3)(7) of the Act to pass a by-law respecting “[s]tructures, including fences and signs” as well as under s. 11(2)(5) of the Act to pass by-laws for matters respecting “[e]conomic, social and environmental well-being of the municipality.”

(a) Whether specific authority in the Act is required in order to enact the By-Law.

[23] In appealing the application judge’s holding, Brisson makes two related arguments. He submits that the power to legislate languages must be expressly found in the enabling statute, and that no such power exists in this case. The only provision in the Act expresslyconcerning language is s. 247, which provides that the by-laws and resolutions of a municipality, official plan and minutes of proceedings shall be in English or in both English and French. Second, Brisson submits that, in any event, the power to enact the By-law cannot be derived from the general municipal powers under the Act; these are mere statements of principles.

[24] Brisson’s narrow interpretation cannot be reconciled with the language of the Act. The general spheres of jurisdiction in s. 11 of theAct are more than statements of principles; the Act gives them “teeth” by providing that they may be exercised so as to regulate, prohibit or require persons to do things respecting these matters (see s. 8(3)(a)-(b) of the Act). Thus, s. 8(3) makes clear that specific by-laws may be enacted pursuant to the general municipal powers and spheres of jurisdiction. Brisson’s submission ignores this.

[25] Broad support for using the general municipal powers as a source of jurisdiction is also found in s. 8(1) of the Act. This section provides that the powers of amunicipality are to be interpreted broadly so as to enable it to govern its affairs as it considers appropriate and to enhance its ability to respond to municipal issues. Section 8(2) of the Act reinforces the language of s. 8(1) by providing that ambiguity as to the authority to pass a by-law is to be resolved in favour of municipal power.

[26] Brisson’s submission is also inconsistent with the jurisprudential evolution respecting the scope of municipal by-law making authority. This evolution has been traced by Feldman J.A. in Croplife Canada v. Toronto (City) (2005), 2005 CanLII 15709 (ON CA), 75 O.R. (3d) 357 (C.A.), at paras. 16-29, leave to appeal to S.C.C. refused, [2005] S.C.R. v. I do not propose to repeat it here.

[27] In particular, the Supreme Court of Canada’s decision in 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241 is authority for the proposition that where no specific power is granted, a general provision in the Actmay be the source of power for the enactment of a specific by-law. While acknowledging that municipalities are statutory bodies that may only exercise the powers expressly provided or impliedly conferred on them by statute, L’Heureux-Dubé J., at para. 18, stated that, “[i]ncluded in this authority are ‘general welfare’ powers, conferred by provisions in provincial enabling legislation, on which municipalities can draw.” Thus, the “general welfare” powers could be the source of authority for the specific by-law banning pesticides. She also quoted the following statement from Rogers, vol. 1, at para. 63.35:

Undoubtedly the inclusion of “general welfare” provisions was intended to circumvent, to some extent, the effect of the doctrine of ultra vires which puts the municipalities in the position of having to point to an express grant of authority to justify each corporate act.

[28] More recently, the Supreme Court of Canada held in United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485 that the non-enumerated regulatory powers under the “spheres of jurisdiction” in Alberta’s Municipal Government Act, S.A. 1994, c. M-26.1 were broad enough to include not only the power to licence taxis but also the power to enact a by-law limiting the number of licences. Bastarache J. noted, at para. 6, that several provinces were moving away from granting specific powers to municipalities in particular subject areas and instead choosing to give them broad authority over generally defined matters. This legislative approach reflected the need for greater flexibility required by modern municipalities in fulfilling their statutory purposes.

[29] Suffice it to say, there has been a shift away from the restrictive, specifically prescribed interpretive approach to municipal power in favour of a broad purposive approach recognizing more flexibility in municipal government.[^3] I would reject Brisson’s argument that specific authority in the Act is required in order to enact the By-Law.

(b) Authority for the By-law under the Act

(i) Whether the By-law is legislation in relation to a “thing”

[30] The general municipal powers granted to a municipality in s. 11(1) of the Act allow it to “provide any service or thing that the municipality considers necessary or desirable for the public”. Brisson submits that the By-law is not a “service or thing” and thus it is ultra vires the Township.

[31] The word “thing” is defined as “a material or non-material entity, idea, action, etc., that is or may be brought about or perceived”: see Canadian Oxford Dictionary, 2d ed., sub verbo “thing”. The enactment of the By-law respecting commercial exterior signs is an action taken by the Township relating to a material entity (signs) or a non-material entity or idea (well-being of persons). I would reject Brisson’s argument that the By-law is not in relation to a “thing”. That said, the Township’s authority to enact the By-law is contained in s. 11(2)(5) of the Act, the provision relating to the social well-being of the Township, as discussed below.

(ii) Whether the By-law relates to the social well-being of the municipality found in the spheres of jurisdiction in s. 11(2)(5) of the Act

[32] The By-law requires persons who operate a commercial business to do something respecting a matter in s. 11(2)(5) of the Act –economic or social well-being. Specifically, the By-law requires a commercial establishment that chooses to erect a new exterior sign to ensure that the message or content of the sign is bilingual, in French and in English, unless it is the name of the business.

[33] One argument put forward is that, instead of promoting the economic or social well-being of the municipality, the By-law detracts from it. This argument is based on the supposition that a commercial establishment with a bilingual exterior sign signals that it will be able to serve customers in both languages. If a commercial unilingual English establishment is compelled to post an exterior bilingual sign, customers will be misled and upset if they cannot be served in French. No evidence was proffered in support of this submission and I would not give effect to it. Indeed, the evidence is that about 70 per cent of the exterior commercial signs in the Township are already bilingual.[^4] The large number of bilingual signs is some indication that most commercial establishments in the Township do not consider an exterior bilingual sign as detracting from the social well-being of the Township.

[34] Considerable evidence that the By-law would instead preserve and enhance the social well-being of the municipality can be found in the expert evidence of Dr. Raymond Breton, a well-known sociologist, the expert evidence of Dr. Robert Choquette, a retired professor of the University of Ottawa who was head of research in French-Canadian civilization, and the evidence of Mr. François Benoît, the Director of Education and secretary-treasurer for the Conseil des écoles publiques de l’Est de l’Ontario.

[35] Dr. Breton is of the opinion that the By-law is a symbolic recognition of the equality of the French and English languages and cultures. I note that this recognition is not happening in a vacuum but in a community that has chosen to designate itself as a bilingual Township and to offer municipal services in French and in English.

[36] According to Dr. Choquette, the Township encompasses a community where the Francophone population reached 80.4 per cent in 1961. It remains the home of a large Franco-Ontarian population.

[37] Mr. Benoît’s evidence is that more than 11,000 students attend the Conseil des écoles publiques de l’Est de l’Ontario’s 37 French public schools, including primary and secondary schools. These schools serve a geographic region which includes, among others, the communities of Embrun, Russell, Limoges and Marionville (all located within the Township). In his opinion:

Le règlement a pour effet d’accroître la visibilité de la langue française dans la sphère communautaire. Le règlement contribue ainsi à la mise en valeur de la langue française dans le milieu communautaire, en dehors des enceintes de l’école et de la famille….

[38] Mr. Benoît’s opinion that the By-law increases the visibility of the French language in the community is clear. His conclusion that the By-law indicates that the French language has value in the community outside of schools and family life is also not surprising.

[39] The application judge accepted the evidence of these experts as well as the evidence of Mr. Benoît and she was entitled to do so.

[40] The By-law promotes the social well-being of the Township pursuant to s. 11(2)(5) of the Act. In view of my conclusion, it is unnecessary for me to address whether the By-law comes within s. 11(3)(7) of the Act respecting “[s]tructures, including fences and signs.”

(c) Whether the broad purposive interpretation of general municipal powers can be applied to language rights

[41] Brisson acknowledges that the By-law may come within the sphere of jurisdiction under s. 11(2)(5) of the Actgiving a municipality the power to pass by-laws respecting matters related to the social well-being of the municipality. However, Brisson submits that, because of the importance of language rights, a specific power rather than a general power is required. The general municipal powers outlined in the Actcannot be used as the source for substantive by-laws dealing with language.

[42] Brisson relies on two decisions in support of his submission that the power to legislate in relation to language on a commercial sign must be expressly stated in the enabling statute: Chaperon v. Sault Ste. Marie (City) (1994), 1994 CanLII 7284 (ON SC), 19 O.R. (3d) 281 (Gen. Div.) and Trumble v. Kapuskasing (Town) (1986), 1986 CanLII 2488 (ON SC), 57 O.R. (2d) 139 (H.C.J.), aff’d (1988), 1988 CanLII 4768 (ON CA), 63 O.R. (2d) 798 (C.A.). In Chaperon,the issue was the validity of a by-law declaring English the official language of the City of Sault Ste. Marie. In Trumble, the validity of a by-law declaring the Town of Kapuskasing an officially bilingual municipality was at issue. In both cases, the argument was that authority to pass the respective by-laws arose from provisions of the Municipal Act which were similar in wording to s. 247 of the Act. It will be recalled, that that section states that the by-laws and resolutions of a municipality, the official plan and the minutes of proceedings may be in English or in both English and French. Section 247 is not put forward as the source of the Township’s power in this case and, in my opinion, these decisions are simply not relevant.

[43] The authorities on which Brisson relies were also decided prior to the enactment of spheres of jurisdiction in the Act. I appreciate that Brisson argues that a change in wording of a statute does not imply a change in the law: see s. 56(2) of the Legislation Act, 2006, S.O. 2006, c. 21, Sch. F. However, this submission is met by the jurisprudence indicating there has been a change in the approach to municipal law: see Croplife. Furthermore, the decisions on which Brisson relies exemplify a situation where the municipality was trying to expand the ambit of a specific authorized power under the then Municipal Act. This is not the situation here. This is also not a situation analogous to R. v. Greenbaum, 1993 CanLII 166 (SCC), [1993] 1 S.C.R. 674,where recourse could not be had to the “omnibus” or general provisions of the municipal legislation because specific powers dealing with the subject matter had been carved out of the other general powers in the municipal legislation at issue.[^5] What is sought here is to use a general provision in theAct as the source of power for a specific by-law.

[44] I see no reason to distinguish the interpretation of the By-law in question from the existing broad and purposive approach to interpretation. Indeed, such an approach is consistent with decisions requiring that language rights be given a liberal and generous interpretation in a manner consistent with the preservation and development of official language communities: see R. v. Beaulac, 1999 CanLII 684 (SCC), [1999] 1 S.C.R. 768 and Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 2001 CanLII 21164 (ON CA), 56 O.R. (3d) 505 (C.A.), aff’g (1999), 1999 CanLII 19910 (ON SCDC), 48 O.R. (3d) 50 (Div. Ct.), both decided after the authorities on which Brisson relies.

[45] I would therefore reject Brisson’s submission that because of the importance of language rights, a specific power rather than a general power is required.

(d) Whether specific authority is required to enact a by-law respecting language because of the French Language Services Act

[46] Brisson argues that the Township’s authority to enact the By-law pursuant to the broad powers of s. 11(2)(5) of the Act is undermined by the French Language Services Act, R.S.O. 1990, c. F.32 (the “FLSA”).

[47] Brisson submits that the FLSA ousts the jurisdiction of a municipality to enact by-laws under the general powers provisions of the Municipal Act, 2001. Section 14(1) of the FLSA provides that a municipality that is in a designated area, such as the Township here, “may pass a by-law providing that the administration of the municipality shall be conducted in both English and French and that all or specified municipal services to the public shall be made available in both languages.” Brisson argues that, if the Municipal Act, 2001 conferred broad authority on municipalities to enact by-laws pertaining to language use within the municipality, s. 14(1) of the FLSA would be entirely unnecessary. In effect, Brisson submits that s. 14(1) of the FLSA limits the power to enact language by-laws to strictly municipal services contained in that section. I disagree.

[48] Brisson’s submission ignores s. 6 of the FLSA which provides that: “This Act shall not be construed to limit the use of the English or French language outside of the application of this Act.” Thus, the express powers of a municipality regarding official languages as provided for in the FLSA do not derogate from any general power included in the general grant of power provision in the Municipal Act, 2001. Furthermore, the FLSA deals with services provided by municipalities in the French language; it does not deal with promotion of the social well-being of municipalities.

(e) Conclusion on ultra vires argument

[49] The By-law is intra vires the Township’s authority. This conclusion takes into account the wording of the Act, the jurisprudence respecting the broad and purposive interpretation of municipal powers, and the expert evidence that the By-law is a means of preserving and enhancing the social well-being of the Township under s. 11(2)(5). Read in conjunction with s. 8(3)(b) of the Act, which, as I have indicated, provides that a by-law under s. 11 may “require persons to do things respecting the matter”, I am of the opinion that the Township had the authority to enact the By-law.

(3) If intra vires, (a) whether the By-law infringes freedom of expression as guaranteed by s. 2(b) of the Charter and, (b) if there is an infringement, whether the limit on freedom of expression is justified under s. 1 of the Charter

(a) Whether the By-law infringes freedom of expression as guaranteed by s. 2(b) of the Charter

[50] Brisson, supported by the intervener, submits that the By-law infringes his right to freedom of expression as guaranteed by s. 2(b) of the Charter.

[51] In deciding whether the By-law infringes freedom of expression, I must undertake the two-step analysis mandated by Irwin Toy Ltd. v. Quebec (A.G.), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927. The first step is to determine whether the conduct falls within the sphere of activity protected by freedom of expression. If so, the second step is to determine whether the purpose or effect of the government action restricts freedom of expression.

[52] The fact that Brisson’s sign is a commercial sign does not remove it from the scope of the protected freedom in s. 2(b): see Ford v. Quebec (A.G.), 1988 CanLII 19 (SCC), [1988] 2 S.C.R. 712, at pp. 766-767. Commercial expression is included within the protection of freedom of expression if it conveys meaning.

[53] One has only to read Brisson’s sign to appreciate that it conveys meaning respecting the nature of his business. Below his business name, “Independent Radiator Services”, the sign reads:

Radiateurs réparés et neufs

Air climatisé rempli et réparé

Réparation mécanique mineure

[54] The sign indicates that the nature of Brisson’s business is repairing and installing new radiators, filling air conditioners [with fluid] and repairing them, and doing minor mechanical repairs. Thus, Brisson’s sign conveys meaning and cannot be excluded from the protection of s. 2(b).

[55] I must therefore determine whether the purpose or effect of the By-law violates Brisson’s right to freedom of expression. Brisson and the intervener submit that compelled bilingualism on new exterior commercial signs forces commercial entities into a course of action they would not have chosen for themselves and that this compulsion violates the guarantee of freedom of expression under s. 2(b). Accordingly, theycontend that the application judge erred in holding there was noinfringement of Brisson’s right to freedom of expression.

[56] Choice of language is an important aspect of expression. In Ford, at p. 748, the Supreme Court of Canada observed that “[l]anguage is not merely a means or medium of expression; it colours the content and meaning of expression.” The court held that s. 58 of the Quebec Charter of the French Language, R.S.Q., c. C-11, which stated that “[p]ublic signs and posters and commercial advertising shall be solely in the official language [French]” was inoperative because it violated the guarantee of freedom of expression in s. 3 of the Quebec Charter of Human Rights and Freedoms, R.S.Q. c. C-12, (the “Quebec Charter”),which is the equivalent of s. 2(b) of the Canadian Charter. The court concluded that s. 3 is infringed when one is compelled to use a particular language and is thereby prohibited from using one’s language of choice. Nor was s. 58 justified under s. 9.1 of the Quebec Charter. Section 9.1 is a provision corresponding to s. 1 of the Canadian Charter subject, in its application, to a similar test of rational connection and proportionality.

[57] In the related case of Devine v. Quebec (A.G.), 1988 CanLII 20 (SCC), [1988] 2 S.C.R. 790,one of the sections which the court considered was s. 57 of the Charter of the French Language which required that “[a]pplication forms for employment, order forms, invoices, receipts and quittances” be drawn up in French. This provision was interpreted as requiring the use of French but permitting the use of another language at the same time because, pursuant to s. 89 of the Charter of the French Language, another language could be used together with French where exclusive use of French was not specifically required: see Devine, at pp. 812-813, 816). I have chosen to discuss this “joint use” of French provision as it was called, specifically because, in addition to infringing the freedom of expression provision in s. 3 of the Quebec Charter, s. 57 was held to also infringe s. 2(b) of the Canadian Charter.

[58] Similar to its holding in Ford, the Supreme Court of Canada held in Devine,at p. 813, that:

[T]he freedom of expression guaranteed by s. 2(b) includes the freedom to express oneself in the language of one’s choice.... That freedom is infringed not only by a prohibition of the use of one’s language of choice but also by a legal requirement compelling one to use a particular language. As was said by Dickson J. (as he then was) in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at p. 336, freedom consists in an absence of compulsion as well as an absence of restraint. [Citation in original.]

[59] The Township seeks to distinguish Devineon the basis that, at pp. 817-818 of its reasons (in relation to s. 57 as well as s. 52 which dealt with catalogues and brochures),the court stated:

[T]he human right or freedom in issue in this case is freedom of expression guaranteed by s. 3 of the Quebec Charter. In Ford it was found that the right guaranteed by s. 3 extended to protect the freedom to express oneself in the language of one’s choice; in this case, however, we have found that s. 3 does not extend to guarantee a right to express oneself exclusively in one’s own language. This result was reached by operation of s. 9.1, which does not limit the application of s. 10 [protecting the right against discrimination] but does limit the application of s. 3. [Emphasis added.]

[60] I am persuaded that the Township’s reliance on this passage is misplaced. The concluding sentence of this passage indicates that the court’s decision upholding s. 57 was reached only after it had applied s. 9.1 of the Quebec Charter, which, as I have indicated, istheequivalent to s. 1 of the Canadian Charter. The court’s answers under the subheading “Answers to the Constitutional Questions and Disposition of the Appeal” at the conclusion of its reasons makes clear that this was the court’s central holding. In addition to finding a violation of s. 3 that was justified by s. 9.1 of the Quebec Charter, the court held that s. 57 violated s. 2(b) but was justified under s. 1 of the Canadian Charter.

[61] Having regard to the Supreme Court’s holdings in Fordand Devine, by compelling the use of both French and English on new exterior commercial signs, the By-law’s purpose infringes Brisson’s right to freedom of expression as guaranteed by s. 2(b) of the Charter. I must now consider whether such infringement is justified under s. 1 of the Charter.

(b) Whether the limit on freedom of expression is justified under s. 1 of the Charter

[62] The application judge correctly set out the criteria that must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society. Citing R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103 and Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, she stated, at para. 176 of her reasons, that:

(a) The objective to be served by the measures limiting a Charter right must be sufficiently important to warrant overriding a constitutionally protected right or freedom.

(b) The party invoking section 1 of the Charter must show the means to be reasonable and demonstrably justified. This involves the following proportionality test:

(i) The measures must be fair and not arbitrary, carefully designed to achieve the objective in question and rationally connected to that objective;

(ii) In addition, the means should impair the right in question as little as possible;

(iii) Lastly, there must be proportionality between the deleterious effects of the by-law and the objective, and there must be a proportionality between the deleterious and salutary effects of the measures.

[63] Brisson and the intervener submit that the application judge did not apply any of these criteria correctly.

(i) Whether the By-law serves an objective that is sufficiently important

[64] Brisson submits that the first criterion, namely that the By-law serves a “pressing and substantial” objective, is not met because protection of the French language is not within the jurisdictional scope of a municipality. I have already held that the By-law is intra vires the Township under its powers in s. 11(2)(5) of the Act,which enables a municipality to pass by-laws respecting the social well-being of the Township.

[65] Moreover, in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, at p. 184, the Supreme Court of Canada stated that deference must be shown to elected officials on the question of whether the legislation is aimed at a pressing and substantial concern. The application judge exercised such deference.

[66] The application judge held, at para. 181 of her reasons, that “the aim of the language policy underlying the By‑law is a serious and legitimate one, namely to protect and assist the survival of the French language while promoting the equality of French and English.” Because of its remedial purpose and the vulnerability of the French language in the Township, the application judge concluded that the By-law met the first criterion.

[67] The evidence before the court,[^6] concerning the social well-being of the municipality, discussed under the authority to enact the By-law in (2)(b)(ii) above, establishes the importance of the purpose the By-law addresses – the preservation and enhancement of the equality of the status of the French language in the Township, a municipality which has chosen to designate itself as bilingual under the French Language Services Act and to offer its services to residents in both languages. The objective of the By-law, the promotion of the equality of status of both French and English, the official languages of Canada, is a pressing and substantial one.

[68] Accordingly, the By-law meets the first criterion of s. 1 of the Charter.

(ii) Whether the By-law meets the proportionality test in the second criterion

[69] Having found that the By-law meets the first criterion, the next question is whether the means used are reasonable and demonstrably justified by applying the proportionality test in the second criterion.

[70] Before proceeding to the analysis of this question, I must first deal with Brisson and the intervener’s submission that the By-law prohibits business owners from using any language, other than French and English, on an exterior commercial sign. The effect given to this submission will inform the proportionality analysis.

[71] Upon reviewing the text of the By-law, I note that the By-law simply says that the content of all new exterior commercial signs must be bilingual and that the lettering of such message (i.e. dimension and style) must be identical in French and English. Although the term “bilingual” can be ambiguous, I agree with the Township that the use of “bilingual” in the By-law means both French and English as opposed to any two languages. This interpretation is based on the ordinary meaning of the term in Canada, which has two official languages, French and English. Further, the By-law does not expressly prohibit the use of another language. Accordingly, I reject the submission that the By-law prohibits the use of other languages on exterior commercial signs.

[72] Brisson’s further submission is that the By-law indirectly restricts the use of other languages as it would be impractical to put a third or fourth language on an exterior commercial sign. This is a bald submission without any supporting evidence and I reject it.

[73] In this second stage, the court must first determine whether the measures are rationally connected to the By-law’s objective. Brisson submits that the application judge erred in refusing to qualify Dr. Conrad Winn as an expert and, as a result, in ignoring his evidence that forced bilingualism in commercial advertising will not effectively address the issue of declining use of French and the need to protect the minority language. Thus, he submits that the application judge erred in holding there was a rational connection between the By-law’s requirement of bilingualism and its objective.

[74] Dr. Winn is a professor of political science at Carleton University who also operates a specialized public opinion research firm. He conducted a poll among a sample group of 70 Franco-Ontarians in Northern Ontario, which “showed that six out of seven respondents believe that residents of Ontario should be entitled to unilingual French signs on their own property if they wish to.” Brisson failed to establish how Dr. Winn’s evidence would assist the court in better understanding the evidence before it and inform the court as to the impact of the By-law on the French language community in the Township. I see no error in the application judge’s refusal to qualify Dr. Winn as an expert.

[75] The application judge had before her evidence that French was, in 2006, the first language learned of 45.5 per cent of the Township’s population, English was the first language learned of 50.3 per cent of that population and 4.2 per cent of the population had another first learned language. Although the total number of Francophones in the Township increased, the evidence of Dr. Castonguay, an expert who is a retired University of Ottawa mathematics professor and has published extensively on linguistic assimilation, is that the proportion of French speakers is decreasing because of linguistic assimilation. Overall, Dr. Breton, a sociologist whose focus is on linguistic and cultural minorities, and Dr. Choquette, an expert on the history of Franco-Ontarians, say that the French population in Ontario and elsewhere in Canada is decreasing. In order to preserve the French language, a linguistic environment is necessary. The material that the application judge did accept indicated a rational connection between protecting the equal status of the French language and assuring that the reality of Quebec society is communicated through the “visage linguistique” as discussed by the Supreme Court in Ford.

[76] Support that the By-law is rationally connected to its objective can also be found in Devinewhere, at p. 820, the court observed that:

We have already determined [in Ford, at p. 780] that the requirement of joint use of French is rationally connected to the legislature’s pressing and substantial concern to ensure that the “visage linguistique” of Quebec reflects the predominance of the French language.

[77] Similarly, the joint use of French and English is rationally connected to the Township’s concern of ensuring that its bilingual nature is reflected on exterior commercial signs.

[78] I also note that deference to the government’s choice is also owed at the rational connection stage: see Lavoie v. Canada, 2002 SCC 23, [2002] 1 S.C.R. 769, at para. 59. Given the evidence of the symbolic importance of affirming the equal status of the two official languages, there is a rational connection between the By-law and the furtherance of the equal status of French and English as well as the preservation of French more generally.

[79] On the second question of whether the means minimally impair the right in question, Brisson submits that the By-law severely restricts the freedom of expression of persons who wish to communicate in a language other than French or English. As a result, he submits the By-law does not minimally impair freedom of expression.

[80] I have already held that the By-law does not prohibit the use of languages in addition to French and English. Although, as Brisson contends,the requirement of joint use of French and English might create an additional burden for merchants and shopkeepers, there is nothing which impairs their ability to use another language equally. Persons engaged in commerce can use any language of their choice along with French and English.

[81] The process undertaken by the Township prior to the enactment of the By-law involved consultation with the public and consideration of other alternatives. It resulted in a By-law that applied only to new, exterior and commercial signs. In Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, at para. 94, the court observed:

First, in dealing with social issues like this one, where interests and rights conflict, elected officials must be accorded a measure of latitude. The Court will not interfere simply because it can think of a better, less intrusive way to manage the problem. What is required is that the City establish that it has tailored the limit to the exigencies of the problem in a reasonable way.

[82] In tailoring the By-law as it did, the Township has established that it dealt with the problem in a way that minimally impairs freedom of expression.

[83] One must also recall the specific facts of this case. The argument that, Brisson’s freedom of expression is more than minimally impaired by requiring the description of his services on his new French only sign to also be in English, loses much of its force having regard to the following facts: the name of Brisson’s business, “Independent Radiator Services”, is unilingually English, and is entitled to remain so; for most of the 34 years Brisson has been in business the content of his sign has been in English only; and he continues to hand out business cards and invoices in English. Thus, in the past, Brisson has chosen to express himself only in English; he now chooses to express himself only in French on his exterior sign while continuing to employ English in other aspects of his business. To require him to employ English on his sign in addition to French is a minimal impairment of his right to freedom of expression.

[84] Having passed the minimum impairment stage, the final question asks whether the infringing effects of the By-law outweigh the importance of the objective sought. Brisson has not advanced any arguments on this aspect of the Oakestest. In light of the importance of the protection and promotion of the equal status of the French language, I would hold that the benefits of the By-law are proportional to any deleterious effect on freedom of expression or inconvenience suffered.

[85] For these reasons, although the By-law is a breach of Brisson’s rights under s. 2(b) of the Charter, it is a breach that is demonstrably justified in a free and democratic society under s. 1 of the Charter.

C. conclusion

[86] I would dismiss the appeal with respect to both Galganov and Brisson.

[87] The Township is entitled to its costs of the appeal on a partial indemnity basis from Galganov and Brisson jointly and severally. I would fix those costs at $60,000, inclusive of disbursements and all applicable taxes.

Released: June 15, 2012

“KMW” “Karen M. Weiler J.A.”

“I agree Robert Sharpe J.A.”

“I agree R.A. Blair J.A.”

Appendix “A” – List of Statutory Provisions

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

2. Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication....

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

16. (3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

French Language Services Act, R.S.O. 1990, c. F.32

6. This Act shall not be construed to limit the use of the English or French language outside of the application of this Act.

14. (1) The council of a municipality that is in an area designated in the Schedule may pass a by-law providing that the administration of the municipality shall be conducted in both English and French and that all or specified municipal services to the public shall be made available in both languages.

Legislation Act, 2006, S.O. 2006, c. 21, Sch. F

56. (2) The amendment of an Act or regulation does not imply that the previous state of the law was different.

Municipal Act, R.S.O. 1990, c. M.45, as repealed by Municipal Act, 2001, s. 484(1)

136. (1) The Ontario Court (General Division) upon application of a resident of the municipality or of a person interested in a by-law of its council may quash the by-law in whole or in part for illegality.

Municipal Act, 2001, S.O. 2001, c. 25

1. (1) In this Act, ...

“person” includes a municipality unless the context otherwise requires....

8. (1) The powers of a municipality under this or any other Act shall be interpreted broadly so as to confer broad authority on the municipality to enable the municipality to govern its affairs as it considers appropriate and to enhance the municipality’s ability to respond to municipal issues.

9. (2) In the event of ambiguity in whether or not a municipality has the authority under this or any other Act to pass a by-law or to take any other action, the ambiguity shall be resolved so as to include, rather than exclude, powers the municipality had on the day before this Act came into force.

10. (3) Without limiting the generality of subsections (1) and (2), a by-law under sections 10 and 11 respecting a matter may,

(a) regulate or prohibit respecting the matter;

(b) require persons to do things respecting the matter;

(c) provide for a system of licences respecting the matter.

11. (1) A lower-tier municipality and an upper-tier municipality may provide any service or thing that the municipality considers necessary or desirable for the public, subject to the rules set out in subsection (4).

12. (2) A lower-tier municipality and an upper-tier municipality may pass by-laws, subject to the rules set out in subsection (4), respecting the following matters:

13. Governance structure of the municipality and its local boards.

14. Accountability and transparency of the municipality and its operations and of its local boards and their operations.

15. Financial management of the municipality and its local boards.

16. Public assets of the municipality acquired for the purpose of exercising its authority under this or any other Act.

17. Economic, social and environmental well-being of the municipality.

18. Health, safety and well-being of persons.

19. Services and things that the municipality is authorized to provide under subsection (1).

20. Protection of persons and property, including consumer protection.

21. (3) A lower-tier municipality and an upper-tier municipality may pass by-laws, subject to the rules set out in subsection (4), respecting matters within the following spheres of jurisdiction:

22. Highways, including parking and traffic on highways.

23. Transportation systems, other than highways.

24. Waste management.

25. Public utilities.

26. Culture, parks, recreation and heritage.

27. Drainage and flood control, except storm sewers.

28. Structures, including fences and signs.

29. Parking, except on highways.

30. Animals.

31. Economic development services.

32. Business licensing.

247. (1) The by-laws and resolutions of a municipality shall be passed in English or in both English and French.

248. (2) An official plan adopted by a municipality shall be in English or in both English and French.

249. (3) Every council and every committee of council may conduct its proceedings in English or French or in both English and French.

250. (4) Despite subsection (3), the minutes of the proceedings shall be kept in English or in both English and French.

273. (1) Upon the application of any person, the Superior Court of Justice may quash a by-law of a municipality in whole or in part for illegality.

273. (1) Sur présentation d’une requête par quiconque, la Cour supérieure de justice peut annuler tout ou partie d’un règlement municipal pour cause d’illégalité.

[^1]: In separate reasons, reported at 2011 ONSC 3065, [2011] O.J. No. 2416, and 2011 ONSC 5609, [2011] O.J. No. 4698, the application judge also awarded costs. Her costs award is the subject of a separate appeal, C54486, heard immediately following this appeal. The reasons in the costs appeal, while dealt with separately, are being released concurrently with this appeal.

[^2]: The holdings that the By-law does not infringe s. 15(1) of the Charter and does not violate international law are not the subject of appeal.

[^3]: See also Ron Levi & Mariana Valverde, “Freedom of the City: Canadian Cities and the Quest for Governmental Status” (2006) 44 Osgoode Hall L.J. 409.

[^4]: The reason that some signs remain unilingual is explained by the fact that the By-law only applies to new exterior commercial sign and not to existing exterior commercial sign that were erected before the By-law was passed.

[^5]: L’Heureux-Dubé J. distinguished Greenbaum in part on this basis in Spraytech, at para. 22.

[^6]: See paras. 47-95 of the application judge’s reasons for a more detailed discussion of the evidence.