COURT OF APPEAL FOR ONTARIO
Sossin, Copeland and Madsen JJ.A.
BETWEEN
Christian Heritage Party of Canada, CHP Hamilton-Mountain Electoral District Association
Applicants (Appellants)
and
City of Hamilton
Respondent (Respondent)
and
Egale Canada
Intervener (Intervener)
Garifalia (Lia) Milousis and Jeremy Bieman, for the appellants
C. Kirk Boggs and Stuart Zacharias, for the respondent
John Sikkema and Joel Persaud, for the intervener, Association for Reformed Political Action Canada
Emma Phillips, Mary-Elizabeth Dill and Kailun Chen, for the intervener, Egale Canada
Heard: February 3, 2026
On appeal from the order of the Divisional Court (Justices Nancy L. Backhouse, Jamie K. Trimble and Graeme Mew), dated November 12, 2024, with reasons reported at 2024 ONSC 6181 dismissing an application for judicial review of a decision of the City of Hamilton, dated July 6, 2023.
I. Overview
1This appeal concerns whether the respondent, City of Hamilton (the “City”), acted unfairly or unreasonably in rejecting a proposed advertisement for City-owned transit shelters from the appellants, Christian Heritage Party of Canada and Christian Heritage Party Hamilton-Mountain Electoral District Association (collectively, “CHP”). CHP brought an application to the Divisional Court seeking judicial review of the City’s decision. The Divisional Court dismissed the application, holding that the City’s decision was both procedurally fair and reasonable. The appellants appeal from the Divisional Court’s decision. For the reasons that follow, I would dismiss the appeal.
II. Background
2On January 28, 2023, CHP wrote to OUTFRONT Media (“OutFront”), the City’s advertising agent, to place an advertisement (the “Advertisement” or the “Ad”) in City-owned transit shelters. The Ad depicted a woman with the captions “Woman:” above and “An Adult Female” below. The Ad included a link to CHP’s website, which laid out its platform. Under the heading “gender issues”, the platform stated that there are “two biological genders: male and female” that “cannot be changed by surgery or chemicals”. It also noted that “[c]hildren must be protected from the LGBTQ ‘gender agenda’ which ignores biological reality.”
3The City had a Policy for Commercial Advertising and Sponsorship (the “Advertising Policy”) that governed commercial advertising on City-owned or City-controlled assets and public property. The Advertising Policy required proposed advertisements to comply with applicable laws, bylaws and City policies. It also required that advertisements not “adversely affect public safety”.
4The Advertising Policy identified the following laws as expressly applicable: the Canadian Charter of Rights and Freedoms, Criminal Code, R.S.C. 1985, c. C-46, Canadian Human Rights Act, R.S.C. 1985, c. H-6,and Ontario Human Rights Code, R.S.O. 1990, c. H.19. Two City policies are also relevant to this appeal: (1) its Equity and Inclusion Policy (the “Equity Policy”); and (2) its Protocol for Gender Identity and Gender Expression; Transgender and Gender Non-Conforming Persons (the “Gender Identity Protocol”).
5The Gender Identity Protocol notes, “The City has a legal and moral responsibility to maintain environments that are free from discrimination and harassment for community members” and that “transgender and gender non-conforming persons constitute one of the most disadvantaged groups in our society.” It goes on to state that “[e]veryone has the right to define their own gender.” The Advertising Policy also required any proposed advertisements to comply with the Canadian Code of Advertising Standards (“CCAS”), which is expressly inapplicable to political advertising.
6On February 1, 2023, OutFront denied the Ad on the ground that it did not comply with CCAS. On February 8, 2023, CHP objected, noting the inapplicability of CCAS to political advertising. On February 11, a representative of OutFront responded, “I have put the message through the chain of approval and it was declined.” Counsel for CHP then wrote to the City’s Manager of Communications on March 24, 2023, requesting the legal basis for OutFront’s initial decision. The City’s Director of Communications and Strategic Initiatives at that time, Matthew Grant responded, on April 12, 2023. He noted that OutFront’s decision was not made by the City and that the City would review the matter and respond after the review.
7This set off a chain of correspondence between Mr. Grant and counsel for CHP. On May 17, 2023, Mr. Grant wrote that the City’s “initial review suggests that the advertisement could potentially impact the City’s ability to provide a safe and welcoming transit system for all and other statutory objectives.” He further wrote that the City “understand[s] the importance of CHP’s right to freedom of expression”. Given the “unusual” nature of the advertisement, the City required time to assess it with “special care”.
8CHP’s counsel responded on May 29, 2023, inquiring as to what made the advertisement “unusual”, given that it is constituted “a political party advertising one of its political and public policy positions.” Counsel also wished to know how the Advertisement would make the transit system “unsafe”.
9Mr. Grant responded on May 31, 2023, explaining that the Advertisement was “unusual in that it differ[ed] from the advertisement requests that the City typically receives”. With respect to safety, Mr. Grant noted that the City was considering how the Ad may be viewed by some as discriminatory in nature. In particular, he cited concerns with respect to incidents in which transgender persons were subject to violence and harassment, including an assault on a City bus that past year. He provided the CHP with a link to a 2021 study linking negative transgender-related media messages and adverse mental health outcomes (the “Study”). Mr. Grant also noted the importance of CHP’s right to freedom of expression. There is no evidence in the record that counsel for CHP replied to this email.
III. Decisions Below:
a. City Review Decision
10In a letter dated July 6, 2023, the City denied CHP’s application for advertising (the “Decision Letter”). The City began by setting out its interpretation of the Advertisement, noting that it “implicitly suggests that only those who are biologically born female can be considered women”, thereby excluding trans women. This interpretation was reinforced by CHP’s platform regarding gender issues. The City noted that the definition of gender advanced by CHP was “narrow and exclusionary, and does not acknowledge the lived experiences of transgender and non-binary individuals who identify as women.” This definition, in the City’s view, could “contribute to social exclusion and discrimination against these communities.” However, the City noted that it could not reject political advertising simply because some people might find it offensive.
11The City acknowledged that it was required to “honour and carefully consider” s. 2(b) of the Charter in its decision. It noted that s. 2(b) was not meant to protect only “banal or widely accepted” speech and that residents have to put up with some controversy on City busses. It also noted that while the Advertisement conflicted with its own policies, this was not a sufficient reason to reject it. Instead, it had to balance CHP’s interest in freedom of expression against its statutory objective of “providing a safe and welcoming transit system.”
12The City concluded that the Ad could potentially cause serious psychological harm to transgender transit users beyond “hurt feelings”. In doing so, it relied on the Study, which found that exposure to anti-trans media messaging was associated with adverse mental health outcomes in transgender and gender diverse individuals. This was concerning given the City’s view that transgender individuals are among the most vulnerable people in contemporary society. This was supported by a 2022 Hamilton Police Services (“HPS”) report documenting an increase in “hate/bias occurrences” against trans people in the Hamilton area and a HPS press release documenting an assault against two transgender riders on a City bus. The City’s consultations with the local LGBTQ community confirmed harmful nature of the Advertisement. The Chair of the City’s LGBTQ advisory committee expressed that in the transgender community’s experience, “this type of promotional material can foster anti-LGBTQ sentiment and discrimination.”
13Thus, in the City’s view, the Advertisement posed a tangible risk to the City’s statutory objective of providing a safe and welcoming transit system. Given that the City’s only options were to either accept or reject the Ad, this risk could only be mitigated by rejecting it. However, the City invited submissions from the CHP on how “to minimize the infringement of CHP’s right to freedom of expression short of accepting the advertisement as submitted”.
b. Divisional Court Reasons
14CHP sought judicial review on the following grounds: (1) the decision was made in a procedurally unfair manner; (2) the decision was unreasonable under Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653and the framework from Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; and (3) the City exhibited bias. The court rejected each of these grounds in turn.
15As a preliminary issue, the court rejected CHP’s submission that OutFront’s initial decision not to run the Advertisement constituted a separately reviewable decision. The court reasoned that CHP only sought judicial review of the City’s decision. CHP also acknowledged that the decision to reject the Advertisement was ultimately the City’s when its representative wrote to OutFront, “I know this [decision] is not your call”.
16With respect to procedural fairness, the court applied the framework set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 and concluded that the decision was fair. On the first Baker factor, the court noted that this was a “standard administrative decision”. This involved balancing the interests of both CHP and transgender and gender non-conforming people. On the second Baker factor, the nature of the statutory scheme required the City to run a public transit system and to have advertisements that comply with the Charter, the Criminal Code and human rights legislation, along with the policies referenced above. With respect to the third and fourth Baker factors, the interests at stake were found to be important both for the CHP and also transgender/gender non-conforming people. On the fifth Baker factor, the procedure chosen by the City was to correspond with CHP to obtain its concerns and views and to conduct research and consult with the LGBTQ community. The court reasoned that CHP was able to express its position that the Charter protected its ability to make a political ad. The City also responded to CHP’s query regarding what about the Ad was “unusual” and “unsafe”. The court noted that CHP was not able to identify what views and concerns it was prevented from expressing.
17Overall, given the decision was a relatively low-level administrative one, the court concluded that the City’s process was proportional and reasonable. Further, the court held that CHP was actively involved in email discussions and that the City invited CHP’s feedback in its decision.
18With respect to substantive reasonableness, the court began with a Doréanalysis, concluding that the decision fell within a “range of reasonable, acceptable outcomes.” It noted that the balancing exercise in this case was a highly contextual inquiry, involving consideration of Charter rights and values, and the City’s statutory objective as expressed in the various policies noted above. Here, the City, through its correspondence with CHP, research, and consultations with the LGBTQ community, carefully considered how CHP’s Charter rights could be protected given the City’s statutory objective. The decision was “reasoned, fair and balanced with respect to the CHP’s rights and the City’s statutory obligations and policies.”
19Turning to Vavilov, the court reasoned that the City’s decision had “an internally coherent logic that shows a rational chain of analysis and that is justified in relation to the facts and law before it.” In particular, the court pointed to the fact that the decision: carefully considered the Ad, CHP’s position, and the City’s Advertising Policy; recognized that this was a complex decision requiring the input of legal counsel and consultation; and set out a prima facie interpretation of the Advertisement and its potential effects on the transgender and gender nonconforming community. It also: acknowledged the importance of the Charter rights at play; admitted the conflict between City policies and the Ad, but noted that this alone could not form the basis of the City’s rejection; reflected a consideration of broad interests and perspectives; and carefully weighed CHP’s important interests against the City’s statutory and policy mandate.
20On the issue of bias, CHP argued that the City was a serial Charter violator with a history of censoring the CHP’s religious and political expression. The CHP cited the Divisional Court’s decisions in CHP v. City of Hamilton, 2018 ONSC 3690, 143 O.R. (3d) 207 (“CHP 2018”) and Association for Reformed Political Action Canada v. Hamilton (City of), 2023 ONSC 6443, 542 C.R.R. (2d) 123. The court concluded these allegations were baseless. These decisions did not support CHP’s claim of bias or disregard for Charter rights. They both involved instances where the City’s decision to take down advertisements (only one of which was the CHP’s) violated the applicants’ rights to procedural fairness.
IV. Issues on Appeal
21The appellants submit that the Divisional Court:
(1) Erred in the description of the decision on review by dismissing OutFront’s involvement;
(2) Misapplied the Baker factors in determining that there was no breach of procedural fairness; and
(3) Improperly applied the Doré/Loyola framework by balancing CHP’s Charter rights with third-party interests (i.e. those of the transgender and gender non-conforming community); and ignoring the CHP’s other Charter-protected rights of freedom of religion and equality.
V. Analysis
a. Standard of Review
22With respect to the question of which decision is subject to judicial review, no deference is owed to the Divisional Court, and its decision on the nature of the judicial review must be correct.
23With respect to the appellants’ argument that the City breached its duty of fairness, as this court has noted, there is no standard of review per se in relation to alleged breaches of procedural fairness: “While there are cases in which the ‘correctness’ standard of review has been held to apply on a judicial review for procedural fairness, the use of the correctness approach can be awkward and confusing in such a context”: Afolabi v. Law Society of Ontario, 2025 ONCA 257, 44 Admin. L.R. (7th) 191, at para. 60. As the Supreme Court observed in Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, at para. 74, procedural fairness requires no assessment of the appropriate standard of judicial review. Rather, the question for the reviewing court is to assess whether decision-maker discharged its duty of fairness. In this case, the Divisional Court concluded that the City has done so.
24It falls to this court to determine whether the Divisional Court correctly undertook its fairness analysis: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45-46; Afolabi, at para. 61. It follows that this court owes no deference to the decision of the Divisional Court: Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, 485 D.L.R. (4th) 583, at para. 36.
25Similarly, for purposes of determining if the decision of the City was reasonable, this court “effectively steps into the shoes of the Divisional Court and focuses on the adjudicator’s decision”: Mason, at para. 36. Accordingly, the issue is whether the appellants have shown the City’s decision to be unreasonable on the basis that it failed to engage in the balancing exercise required by the framework from Doré/Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613.
26With respect to the standard of review for the City’s adherence to the Doré/Loyola framework, the City’s identification of the Charter rights and the scope of their protection is subject to a standard of correctness: York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, 492 D.L.R. (4th) 613, at para. 63. The City’s balancing of those interests with the City’s statutory objectives, however, is subject to a standard of reasonableness: Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, 487 D.L.R. (4th) 631, at para. 60; see also Toth v. Canada (Mental Health and Addictions), 2025 FCA 119, 505 D.L.R. (4th) 356, at paras. 17-19.
b. The decision under judicial review was that of the City
27As set out above, the Divisional Court did not treat the initial communication from OutFront as a “decision” for purposes of the judicial review.
28According to the appellants, however, the Divisional Court erred in law and made palpable and overriding errors of fact by dismissing OutFront’s involvement and what CHP referred to as the “original decision” as irrelevant. The appellants submit that the Court ignored a crucial portion of the history of the proceedings, thus undermining the rest of the Court’s procedural fairness and reasonableness analysis. By refusing to consider OutFront’s initial response to the Advertisement, the appellants argue that the Divisional Court erred in attempting to divorce the City’s decision from the history of the proceedings dating back to January 2023. The appellants rely on the majority’s statement in Vavilov that, “[t]he review of an administrative decision can be divorced neither from the institutional context in which the decision was made nor from the history of the proceedings”: at para. 91.
29The City argues that CHP’s initial interaction with OutFront Media is not relevant to CHP’s judicial review application. Per CHP’s Notice of Application, the decision under review was the City’s decision to reject the Ad on July 6, 2023. The City, which underscores that it was not even aware of CHP’s communication with OutFront at the time, made its own independent decision and is the “final arbiter”.
30In my view, the Divisional Court did not err by focusing on the Decision Letter from the City as the decision under review.
31That does not mean, however, that CHP’s correspondence with OutFront is irrelevant. As the appellants’ correctly note, the history and context of a decision under review may well be relevant. For example, had the City undertaken no separate inquiry, and simply affirmed OutFront’s view that the proposed Ad was inconsistent with CCAS, then OutFront’s initial response to CHP could have been a key consideration on review. However, that is not what occurred. The City did not affirm OutFront’s reliance on CCAS. Instead, the City undertook its own process to decide that the Advertisement should not be accepted. That process and determination were properly the focus of the judicial review application.
32I would reject the appellants’ argument that the Divisional Court erred in the description of the decision on review by focusing on the City’s Decision Letter, and dismissing OutFront’s involvement.
c. The City’s process did not breach the duty of fairness
33The parties agree that the framework governing whether the City met its duty of fairness is that set out by the Supreme Court in Baker, at paras. 23-28, and includes five listed criteria to consider:
(a) The nature of the decision to be made and process followed in making the decision;
(b) The nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
(c) The importance of the decision to the individuals affected;
(d) The legitimate expectations of the person(s) affected by the decision; and
(e) The agency or administrator's choice of procedure.
34The Divisional Court’s conclusions are set out above. At the end of its analysis, the Divisional Court held, at para. 37:
Considering the five Baker factors, the process that the City applied in reaching its decision is fair. The decision is not an adjudicative one. Rather, the decision is a relatively low-level administrative decision, albeit one that involved weighing significant interests. The process was proportional and reasonable. CHP was consulted through its email discussions with OUTFRONT and the City. In its decision, the City invited feedback from CHP.
35The appellants argue they were denied fairness by the City. They contend that the Divisional Court repeatedly erred in law and mixed law and fact when conducting its procedural fairness analysis and applying the Baker framework.
36First, the appellants submit that the Divisional Court improperly considered the interests of third parties in their application of the Baker framework. With respect to the third and fourth Baker factors, the Divisional Court stated:
The importance of the issues arising from the proposed Advertisement was high both for CHP but also for transgender and gender non-conforming people, all of which were legitimate interests: CHP’s interest in political expression, and the City’s and transgender/gender non-conforming people’s interest in having a safe, respectful, and inclusive environment for all community members who use public services such as public transit, including those who are not cis-gender.
37The appellants argue that it was an error for the Divisional Court to refer to the importance of the issues in the decision for “transgender and gender non-conforming people” as it was not the fairness entitlements of those groups at issue in the City’s decision with respect to the proposed Advertisement.
38The appellants are correct that the focus of the fairness inquiry is whether they were treated fairly, not whether the City addressed the needs of other interested groups in the decision. The choice of process by the City, however, also is a relevant Baker criterion, though it is usually discussed as the fifth factor, and not, as in the Divisional Court’s analysis, as part of the third and fourth factors. That said, in this case, the choice of procedure occurred in the context of the City attempting to balance CHP’s interests with the importance of the decision to the third party groups mentioned. In my view, setting out this context as part of its explanation of its process did not constitute an error. Further, as I read the Divisional Court’s conclusion, the City’s reference to the importance of the issues for other groups explained its decision to consult those groups but played no role in its reasoning on whether the appellants were denied a fair process. The Divisional Court acknowledged that the issue was of high importance to CHP.
39Importantly, the Divisional Court’s reasoning as to why the City met its fairness obligations to the CHP did not relate to the importance of the issue for third party groups, but rather to its findings that CHP was consulted, that the decision was administrative rather than adjudicative in nature, and that the City’s process overall was reasonable and proportionate.
40The appellants take issue with these conclusions, and in particular, the finding that CHP was “consulted.” According to the appellants, the record does not demonstrate that the City corresponded with CHP as a means of consultation. Rather, after OutFront’s decision, the City only became directly involved after CHP’s counsel sought clarification for the application of the CCAS.
41Finally, the appellants contend that the Divisional Court failed to adhere to its own guidance in the earlier litigation between the parties: CHP 2018. The court in CHP 2018 held that “it was imperative for the city to undertake an adequately robust process”: at para. 63. CHP should have had “an opportunity to participate”: CHP 2018, at para. 60.
42The City argues that it provided an opportunity to CHP to participate through its forthright communications with CHP’s counsel, which identified the issues that the City was considering. The City also provided answers to the questions posed by CHP’s counsel in correspondence. As well, according to the City, CHP had multiple opportunities to put forward any submissions or evidence that it wished, nor was a specific invitation to do so required. CHP’s counsel made the decision not to respond further, nor did CHP request an opportunity to put forward further evidence. The City underscores the Divisional Court’s observation that, “CHP does not identify what other views it was prevented from expressing or what the City should have but failed to consider in reaching its decision.”
43The City also highlights that the Decision Letter specifically invited CHP to suggest alternatives to rejecting the Advertisement which address the concerns outlined in the letter. CHP provided no response to this invitation.
44I see no error in the Divisional Court’s Baker analysis. The decision to accept or deny a proposed advertisement for transit shelters was administrative in nature. It required, under the statutory schemes governing the City, the balancing of several legal and policy considerations. CHP was entitled to be informed of these considerations and to have an opportunity to participate in the City’s process.
45The City’s process was not perfect. There is no reason why the City’s correspondence with CHP could not have expressly invited responses, submissions and further evidence, if any, from CHP. Nonetheless, the record shows that CHP had ample opportunities to participate in the City’s process.
46CHP did in fact provide responses to the City’s evolving position, both directly by asserting CHP’s position on key issues in dispute and indirectly by posing additional, pointed questions to the City. For example, on May 29, 2023, counsel to CHP responded to an email from Mr. Grant which had referred to the proposed Ad as an “unusual” one requiring special care from the City. Counsel raised the City’s concern with respect to the safety of transit users, by asking, “You state that the advertisement is unusual. What exactly is unusual? It is a political party advertising one of its political and public policy positions. Can you advise how the proposed political advertisement would make the transit system ‘unsafe’?”
47The City’s engagement over a period of months with CHP while it conducted due diligence on the Advertisement distinguishes this case from CHP 2018. There, CHP’s advertisement was at first accepted and hung in bus shelters. The advertisements were then removed, and this decision was made in an entirely internal process, with no opportunity for CHP to participate whatsoever.
48Further, it was clear to CHP throughout its correspondence with the City that the City had not yet come to a final decision. For example, in the May 31, 2023 email, Mr. Grant wrote:
Assuming, for the moment, that this ad will be approved, and to expedite the next part of the process, perhaps you can give me a sense of the locations you would like to place the advertisement and your advertising budget for this purchase and I can have my marketing manager reach out to our advertising firm to make them aware.
49In my view, reviewing the record as a whole in light of the Baker analysis, the City provided an adequate opportunity for CHP to be heard. It also provided CHP with a clear sense of the issues under consideration, their origins and implications, and therefore a good understanding of the case to be met. Accordingly, I conclude the City did not breach its duty of fairness.
50For these reasons, I would reject this ground of appeal.
d. The City’s decision was not unreasonable for failing to apply the Doré/Loyola framework
51The appellants argue that the Divisional Court erred in assessing the reasonableness of the City’s decision in light of the appellants’ Charter rights and values. As set out above, the role of this court is to step into the shoes of the reviewing court and determine if the underlying decision was reasonable.
52The Doré/Loyola framework for balancing Charter values with statutory objectives does not appear to be in dispute in this case. Rather, the parties diverge with respect to whether the City properly abided by that framework in the circumstances of this case.
53The framework originated in the Supreme Court decisions in Doré, Loyola, and Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293, and affirmed most recently in Commission scolaire. Under this framework, the Court prescribed a two-step process in which the decision-maker should first consider the statutory objectives underlying a discretionary decision and then ask “how the Charter value at issue will best be protected in view of the statutory objectives”: Doré, at paras. 55-56.
54This court reviewed the Doré/Loyola framework in Lauzon v. Ontario (Justices of the Peace Review Council), 2023 ONCA 425, 166 O.R. (3d) 481, leave to appeal refused, [2023] S.C.C.A. No. 366, and emphasized the requirement for a “robust proportionality analysis”, at paras. 145-46:
In place of the Oakes test, Abella J. prescribed a two-step process in which “the decision-maker should first consider the statutory objectives”, and then ask “how the Charter value at issue will best be protected in view of the statutory objectives”. This expectation was later enhanced in Loyola and Trinity Western: tribunals must carry out “a robust proportionality analysis consistent with administrative law principles”, one that works “the same justificatory muscles” as the Oakes test, not a “watered-down version”. It is noteworthy that Abella J. added the word “robust” and emphasized it in Loyola when she reprised the Doré framework. This word was clearly meant to be taken seriously, and I do.
The majority in Trinity Western said: “The Doré/Loyola framework is concerned with ensuring that Charter protections are upheld to the fullest extent possible given the statutory objectives within a particular administrative context.” This language built on Abella J.’s formulation in Loyola, where she said that, under Doré, “the discretionary decision-maker is required to proportionately balance the Charter protections to ensure that they are limited no more than is necessary given the applicable statutory objectives that she or he is obliged to pursue”. [Footnotes omitted.]
55The Decision Letter makes clear how the City understood the balancing exercise. For example, in setting out the concerns that the City sought to address, Mr. Grant expressly acknowledged the importance of CHP’s Charter rights:
We acknowledge and deeply respect your organization's right to freedom of expression, a right that has been recognized as a fundamental ingredient to the proper functioning of democracy for hundreds of years. It has been protected by constitutions, laws and courts across numerous democratic jurisdictions and it is a right that we honour and carefully consider in our decisions.
We agree with the perspective expressed in the Ontario Court of Appeal, which described the profundity of this right and its importance in a democratic society. Freedom of expression has been highlighted as the cornerstone of democracy, ensuring that everyone can manifest their thoughts, opinions, beliefs, and expressions, however unpopular, distasteful, or contrary to the mainstream. This protection is regarded as 'fundamental' because, in a pluralistic, democratic society, we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual.
Accordingly, the Supreme Court has recognized that citizens, including bus riders, are expected to put up with some controversy in a democratic society and some resiliency in the audience is required. [Footnote omitted.]
56In the next section of the letter, under the heading “Balancing the Freedom of Expression against the City’s Statutory Objectives,” Mr. Grant noted that the right to freedom of expression is not absolute, and that, in the context of accepting advertisements, the City was entitled, and obligated, to balance CHP’s Charter right against the statutory objectives that the municipality was pursuing. Mr. Grant described the City’s objective as providing a safe and welcoming transit system.
57At the end of the Decision Letter, Mr. Grant returned to this balancing exercise. After reiterating that the City “steadfastly” supports freedom of expression and the City’s concern for the “hostile environment” to which the Advertisement could give rise, Mr. Grant concluded, “It is therefore imperative that we make decisions that prioritize the safety and well-being of our transit users above all. Thus, to provide an inclusive, respectful, and safe environment for all citizens, we find it necessary to reject this advertisement.”
58The appellants argue that the City was unduly fixated on the transgender and LGBTQ third party communities. They contend that the statutory objective of a safe and welcoming transit system is not solely concerned with the interests of these communities, but the larger population of the City as a whole. The appellants submit that to elevate the safety and well-being of these communities as the only interests to be weighed against CHP’s Charter rights amounts to an error.
59I would reject this submission. The City did not arbitrarily choose to focus on transgender or LGBTQ communities at the expense of other residents of the City. Rather, the City relied on empirical and qualitative evidence about and from these communities, who they identified as being the groups most vulnerable to harms arising from the Advertisement. The City concluded based on its research and consultations that the Advertisement would likely jeopardize the City’s ability to provide a safe and welcoming transit system. It provided CHP with the sources for this conclusion in the Decision Letter. The Supreme Court has confirmed the validity of this objective as a justification to limit transit advertising: Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295, at para. 76.
60This analytic approach is analogous to the Supreme Court’s approach to the Doré/Loyola analysis in Trinity Western: it is necessary to consider whether the unlimited exercise of the Charter rights of one group could cause concrete harms to another, contrary to the statutory objectives in issue: at para. 103. In Trinity Western, the majority held, at para. 101:
In saying this, we do not dispute that “[d]isagreement and discomfort with the views of others is unavoidable in a free and democratic society”, and that a secular state cannot interfere with religious freedom unless it conflicts with or harms overriding public interests. But more is at stake here than simply “disagreement and discomfort” with views that some will find offensive. This Court has held that religious freedom can be limited where an individual’s religious beliefs or practices have the effect of “injur[ing] his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own”. Likewise, in Multani, the Court held that state interference with religious freedom can be justified “when a person’s freedom to act in accordance with his or her beliefs may cause harm to or interfere with the rights of others”. Being required by someone else’s religious beliefs to behave contrary to one’s sexual identity is degrading and disrespectful. Being required to do so offends the public perception that freedom of religion includes freedom from religion. [Emphasis added; citations omitted.]
61The parties, and even more so the intervening organizations, Association for Reformed Political Action Canada (“ARPA”) and Egale Canada, advance divergent views on whether the proposed Advertisement constitutes discrimination against transgender individuals or other members of the LGBTQ community.
62Egale advances the view that the proposed Advertisement is discriminatory on its face and by defining “woman” as an “adult female”, the Advertisement asserts that only those who are assigned female at birth are women. Egale submits that this denies the legitimacy of transgender identities and the very existence of women who were not assigned female at birth.
63The appellants and ARPA contend that this is not the case. They assert that the alleged harm to these communities is a form of subjective offence, which should not be seen as capable of infringing the political speech rights of the appellants in a Doré/Loyola analysis. The appellants rely on this court’s decision in Bracken v. Fort Erie (Town), 2017 ONCA 668, 137 O.R. (3d) 161, at para. 49, where the court held that “a person’s subjective feelings of disquiet, unease, and even fear, are not in themselves capable of ousting expression categorically from the protection of s. 2(b).” They also rely on the majority’s reasons in Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43, [2021] 3 S.C.R. 176, for a similar proposition. These cases make clear that, in order to justify rejecting the Ad, something more than avoiding the subjective offence of certain residents of the City was needed. Similarly, the mere inconsistency of the proposed Advertisement with City policies such as the Gender Identity Protocol would not, on its own, justify rejecting the Advertisement. Rather, the City rejected the Advertisement based on the risk of harm to which it gave rise and the City’s statutory requirement to provide a safe and welcoming transit system.
64In my view, the issue of whether the proposed Advertisement would violate the Ontario Human Rights Code, or otherwise would be found unlawful, is not determinative in the Doré/Loyola context. The City did not rely on the illegality of the Advertisement as a basis for rejecting it but rather the link between the Advertisement and evidence of specific harm to transgender people. While ARPA argues that this evidence was insufficient to support the conclusions reached by the City, the City’s analysis is entitled to deference. I would not accept that the City acted unreasonably in engaging in this research or in identifying the risk of specific harms flowing from the Advertisement, particularly where, in the context of transit shelters, the message in the Ad would be virtually impossible for affected individuals to ignore.
65The appellants also take issue with the City’s alleged failure to grapple with other Charter values at issue in this case, including equality rights for religious groups and rights to religious freedom. The City argues it was not obliged to refer to rights beyond freedom of expression and underscore that in the Notice of Constitutional Question accompanying its application for judicial review, only s. 2(b) of the Charter is mentioned.
66The appellants have not drawn any clear connection between the Advertisement and the freedom to practice their religion. They also have not shown how rejecting the Advertisement would create inequality between one or more religious groups and others.
67In their factum, the appellants assert that, “CHP’s Christian values are central to its political messaging and inform CHP’s engagement with the truth-seeking process protected by section 2(b).” CHP has not shown that the City had evidence in the record as to the meaning of “Christian values” or that CHP’s position was reflective of the City’s Christian-identifying residents’ views. The City acknowledged that the Advertisement “supports a traditional and biologically determined definition of gender, in line with conservative values.” In my view, specific reference to CHP’s understanding of Christianity and its values was not necessary for the City’s Doré/Loyola analysis.
68In Lauzon, at para. 151, this court emphasized that the decision-maker must undertake three inquiries as part of the Doré/Loyola analysis: (1) the decision-maker should assess the negative effects of the decision on the exercise of the right asserted, as well as any collateral effects, for example, creating a chilling effect on the rights of others; (2) the decision-maker should assess the positive effects or benefits of that disposition in terms of the public good; and (3) the decision-maker should undertake the proportionality analysis by assessing, for example, whether the disposition involves means that are always impermissible, whether the disposition is needed to achieve the good sought, or whether the negative effects or costs imposed by the disposition are out of proportion to the public good to be achieved.
69While the appellants object to how the City engaged in its proportionality reasoning – for example, the appellants argue the public good at issue was protecting free speech, not ensuring the safety and inclusion of the transit system – it is clear that the City undertook the robust proportionality exercise envisioned in Lauzon.
70With respect to the substance of the City’s proportionality analysis, as set out above, deference is owed.
71The question, ultimately, is whether the City acted reasonably. As Abella J. observed in Doré, at para. 54:
Even where Charter values are involved, the administrative decision-maker will generally be in the best position to consider the impact of the relevant Charter values on the specific facts of the case. But both decision-makers and reviewing courts must remain conscious of the fundamental importance of Charter values in the analysis. [Emphasis in original.]
72For the reasons set out above, I conclude that the City’s decision to reject the Advertisement was reasonable and resulted from a proper application of the Doré/Loyola analysis.
VI. Disposition
73For these reasons, I would dismiss the appeal.
74The City is entitled to its costs in the amount of $36,500, all inclusive, for both the motion for leave to appeal and the appeal.
Released: March 18, 2026 “L.S”
“L. Sossin, J.A.”
“I agree. J. Copeland J.A.”
“I agree. L. Madsen J.A.”