Vietnamese Association of Toronto v. The City of Toronto [Indexed as: Vietnamese Association of Toronto v. Toronto (City)]

85 O.R. (3d) 656

Ontario Superior Court of Justice, Divisional Court,

Lederman, Swinton and Quigley JJ.

April 23, 2007

Administrative law -- Judicial review -- Availability -- Statutory power of decision -- City's Chief of Protocol denied permission to fly national flag of former South Vietnam on courtesy flagpole in city hall square -- Chief of Protocol exercised statutory power and Court had jurisdiction to judicially review decision -- Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

Administrative law -- Natural justice -- Legitimate expectations -- Applicant was permitted to fly flag of former South Vietnam on courtesy flagpole in city hall square for years -- Applicant was denied permission to do so after City adopted policy of only flying national flags of countries recognized by federal Department of Foreign Affairs -- Doctrine of legitimate expectations did not apply and would not protect a right to fly the heritage flag in perpetuity -- City did not act unfairly in applying flag policy.

Charter of Rights and Freedoms -- Freedom of expression -- City's Chief of Protocol denied applicant's request to fly flag of former South Vietnam on courtesy flagpole in city hall square pursuant to policy of only flying national flags of countries recognized by federal Department of Foreign Affairs -- Decision did not have purpose or effect of violating applicant's freedom of expression -- Flagpole is not public property to which public has historically had access -- Canadian Charter of Rights and Freedoms, s. 2(b).

The applicant, a non-profit charitable organization that served Toronto's Vietnamese community, hosted an event in Nathan Phillips Square in front of Toronto City Hall every year to commemorate the flight of Vietnamese people from South Vietnam when the communist regime took over. Until 2005, the Vietnamese Community Heritage and Freedom Flag (the "heritage flag") was raised on that date on the courtesy flagpole in the square. The heritage flag is the national flag of the former South Vietnam. Toronto City Council adopted a flag-raising protocol, [page657] under which the only national flags which could be flown on the courtesy flagpoles in the square were flags of nations recognized by the federal Department of Foreign Affairs. Flags of non-profit or charitable organizations could also be flown. In each case, a written request was required. In 2005, the applicant submitted a request to raise the heritage flag. The City's Chief of Protocol refused to grant permission, relying on the "national flag protocol", and the Mayor confirmed that decision. The applicant brought an application for judicial review of that decision.

Held, the application should be dismissed.

The court had jurisdiction to judicially review the decision. The decision was not an administrative or legislative decision that required the balancing of policy and political considerations. In making the impugned decision, the Chief of Protocol was exercising a statutory power of decision within s. 1(1) of the Judicial Review Procedure Act as she was applying a policy adopted by by-law.

The refusal to fly the heritage flag did not amount to a denial of freedom of expression, contrary to s. 2(b) of the Canadian Charter of Rights and Freedoms. The activity which the applicant sought to pursue -- the flying of a flag of symbolic importance to its members -- was a form of expressive activity that fell within the sphere of conduct protected by s. 2(b). However, the purpose of the City in adopting and applying the policy was not to suppress the applicant's freedom of expression. It was to prevent diplomatic incidents and to avoid becoming involved in political disputes among diaspora communities living in Toronto. The effect of the policy was not to suppress expression. Section 2(b) does not guarantee a right to any particular means of expression. While s. 2(b) protects a right of public access to Nathan Phillips Square, subject to concerns for safety, the applicant had no right to use the courtesy flagpole in the square, as the flagpole was not public property to which the public has historically had access. Moreover, government is generally under no obligation to provide a particular platform of expression to groups or individuals. The applicant could use the square for its commemorative ceremony and participants could carry and display the heritage flag. The fact that they could not display the flag in the way they wished did not constitute a denial of freedom of expression. Alternatively, if the decision was a denial of freedom of expression, the limitation on the use of the flagpole was a reasonable one within s. 1 of the Charter.

The City did not breach its duty of procedural fairness to the applicants by denying its legitimate expectations that it would continue to be permitted to fly the heritage flag, having done so for 25 years. The doctrine of legitimate expectations did not apply in the circumstances of this case. Assuming that the City had a duty to act fairly in applying the flag policy, the doctrine of legitimate expectations, at most, gives rise to procedural rights, and does not provide substantive rights. Therefore, the applicant could not rely on it to claim a right to have the heritage flag flown in perpetuity.

The decision of the Chief of Protocol was not unreasonable.

APPLICATION for judicial review of a decision refusing permission to fly a flag.

Cases referred to Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141, [2005] S.C.J. No. 63, 258 D.L.R. (4th) 595, 340 N.R. 305, 134 C.R.R. (2d) 196, 201 C.C.C. (3d) 161, 2005 SCC 62, 33 C.R. (6th) 78, 18 C.E.L.R.(3d) 1, 32 Admin. L.R. (4th) 159, 15 M.P.L.R. (4th) 1, apld Midnorthern Appliances Industries Corp. and Ontario Housing Corporation (1977), 1977 1081 (ON SC), 17 O.R. (2d) 290, [1977] O.J. No. 2395 (Div. Ct.), distd [page658] Other cases referred to Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, 174 D.L.R. (4th) 193, 243 N.R. 22; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, [1991] S.C.J. No. 3, 77 D.L.R. (4th) 385, 120 N.R. 241, 4 C.R.R. (2d) 60 (sub nom. Lepine v. Canada); Irwin Toy Ltd. v. Québec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927, [1989] S.C.J. No. 36, 24 Q.A.C. 2, 58 D.L.R. (4th) 577, 94 N.R. 167, 39 C.R.R. 193, 25 C.P.R. (3d) 417; Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, [2000] 1 S.C.R. 342, [2000] S.C.J. No. 14, 76 B.C.L.R. (3d) 201, 183 D.L.R. (4th) 1, 251 N.R. 42, [2000] 6 W.W.R. 403, 9 M.P.L.R. (3d) 1; Native Women's Assn. of Canada v. Canada, 1994 27 (SCC), [1994] 3 S.C.R. 627, [1994] S.C.J. No. 93, 119 D.L.R. (4th) 224, 173 N.R. 241, 24 C.R.R. (2d) 233; Shell Canada Products Ltd. v. Vancouver (City), 1994 115 (SCC), [1994] 1 S.C.R. 231, [1994] S.C.J. No. 15, 88 B.C.L.R. (2d) 145, 110 D.L.R. (4th) 1, 163 N.R. 81, [1994] 3 W.W.R. 609, 20 M.P.L.R. (2d) 1 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 1, 2(b) Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 1(1), 2(1) By-laws referred to City of Toronto, By-law No. 4-1999 (1999) Authorities referred to Brown, Donald J.M. and John M. Evans, Judicial Review of Administrative Action in Canada, loose-leaf (Toronto: Canvasback Pub., 1998)

Avvy Yao-Yao Go, for applicant. Rosanne Giulietti, for respondent.

The judgment of the court was delivered by

[1] SWINTON J.: -- The Vietnamese Association of Toronto ("VAT") has brought an application for judicial review of a decision made by the Chief of Protocol of the City of Toronto, which was confirmed by the Mayor. At issue is the legality of the City's refusal to raise the Vietnamese Community Heritage and Freedom Flag on the courtesy flagpole in Nathan Phillips Square, the public area in front of Toronto's city hall.

Factual Background

[2] The City of Toronto adopted a flag-raising protocol in 1999. The protocol is based on recommendations made by the City's Strategic Policies and Priorities Committee, which were adopted by City Council in City By-law No. 4-1999. In its report, the Committee stated that its purpose was "to approve a design for the official flag of the City of Toronto, the policies for flying flags on municipal [page659] property and procedures for half-masting". Among the recommendations adopted, the following are relevant to this application:

(3) the existing courtesy flagpoles will fly the flag of nations recognized by the Federal Department of Foreign Affairs, on its national day or on the anniversary of a special occasion for up to two weeks, upon written request;

(4) the flag of a non-profit or charitable organization will be flown on a courtesy flagpole for up to two weeks upon the written request of the group or organization;

(6) the Chief of Protocol be delegated authority to approve all flag raisings in accordance with Council policy and that Toronto Protocol, Clerk's Division, Corporate Services Department be responsible for administering the flag raising policies and for the coordination of all flag ceremonies and related events.

[3] VAT is a non-profit charitable organization that has served the City's Vietnamese Canadian community for over 25 years. Organizations from the Vietnamese community, including VAT, host an event in Nathan Phillips Square on April 30 of each year to commemorate the flight of Vietnamese people from South Vietnam when the communist regime took over in 1975. Until 2005, the Vietnamese Community Heritage and Freedom Flag (the "heritage flag") was raised on the courtesy flagpole in the square. That flag, which is golden with three red stripes, is the national flag of the former South Vietnam.

[4] On February 16, 2005, the City granted permission for the raising of the Vietnamese flag to the Republic of Vietnam Armed Forces Veterans Association of Ontario. On April 11, 2005, however, the Chief of Protocol informed the Association that the flag to be flown would be the official flag of Vietnam, which is a yellow star on a red background. Her letter stated that the former flag of Vietnam had been flown in error in past years, and that the City would only fly the flag of current nations recognized by the Government of Canada.

[5] On November 25, 2005, the Chief of Protocol wrote to VAT, which had requested permission to raise the heritage flag. She explained that the flags of nations recognized by the federal Department of Foreign Affairs ("DFAIT") would be flown. While she acknowledged that the heritage flag had been adopted as a flag of a community/non-profit organization, she was required to comply with "national flag protocol".

[6] By a letter dated April 18, 2006, Mayor David Miller confirmed that decision. He stated"[T]he City must comply with the flag raising protocol recognized by the Federal Department of Foreign Affairs". [page660]

The Issues

[7] There are four issues in this application:

(1) Does this court have jurisdiction to judicially review the City's decision?

(2) Was the refusal to fly the heritage flag a denial of freedom of expression?

(3) Did the City breach its duty of procedural fairness?

(4) Was the decision of the Chief of Protocol unreasonable?

Issue no. 1: Does this court have jurisdiction to judicially review the City's decision?

[8] The City submits that the decision of the Chief of Protocol is not subject to judicial review, because it was an administrative or legislative decision that required the balancing of policy and political considerations. The City relies on Re Midnorthern Appliances Industries Corp. and Ontario Housing Corporation (1977), 1977 1081 (ON SC), 17 O.R. (2d) 290, [1977] O.J. No. 2395 (Div. Ct.) where the Divisional Court held that there was no power to judicially review a decision of the Ontario Housing Corporation dealing with the negotiation of contracts for the supply of equipment.

[9] I disagree with the submission that the Chief of Protocol made a legislative or policy decision in the course of determining that the heritage flag could not be flown on April 30. The only policy decision made was that of City Council in 1999, when it passed its by-law adopting the recommendations of the Strategic Policies and Priorities Committee and granting authority to the Chief of Protocol to carry out the Flag Policy. The Chief of Protocol merely implements the policy and administrative dictates of Council, as embodied in the by-law, by applying the policy to requests made on a continuing basis by national, community and charitable groups. She is not empowered by the by-law to make decisions that balance policy and political considerations. That balancing has already been decided upon by City Council in the formulation of the policy itself.

[10] It is for this reason that the Midnorthern case is distinguishable. The Chief of Protocol is not simply dealing with the management of public property or the negotiation of a contract. She does not have the same range of permitted action as the applicable party in the Midnorthern case, where the authorized action -- what was necessary to achieve a negotiation of a contract -- was necessarily broader. She is merely applying and implementing a policy of City Council that has been adopted by by-law. [page661]

[11] Pursuant to s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 ("JRPA"), the court, on an application for judicial review, may grant relief that the applicant would be entitled to in proceedings by way of an application for an order in the nature of mandamus, prohibition or certiorari. In my opinion, the Chief of Protocol is exercising a statutory power of decision within s. 1(1) of the JRPA, as she is applying a policy adopted by by-law, and her decision determines the eligibility of a party to receive a benefit -- the use of the courtesy flagpole. Therefore, judicial review is available.

Issue no. 2: Was the refusal to fly the heritage flag a denial of freedom of expression?

[12] VAT does not attack the constitutionality of the Flag Policy. However, counsel submitted that the application of the policy constituted a denial of VAT's right to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms that was not justified under s. 1.

[13] The City submits that s. 2(b) of the Charter is not engaged, as citizens have no right to use the City's flagpole.

[14] The activity which VAT seeks to pursue -- the flying of a flag of symbolic importance to its members -- is a form of expressive activity that falls within the sphere of conduct protected by s. 2(b) of the Charter (Irwin Toy Ltd. v. Québec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927, [1989] S.C.J. No. 36, at para. 40). However, in order to show a violation of s. 2(b), it must demonstrate that the purpose or effect of the City's refusal to fly the heritage flag was to control its members' freedom of expression (Irwin Toy, para. 47).

[15] The purpose of the City in adopting and applying the policy was not to suppress VAT's expression. The purpose of the City's Flag Policy, as set out in the Report of the Strategic Policies and Priorities Committee, was to develop a policy for the use of the City's flagpoles so as to prevent diplomatic incidents (Report, p. 4). The writers of the report stated that they had consulted Foreign Affairs Canada to ensure that the City guidelines would not be in conflict with national flag protocol when the flags of other countries were flown (p. 3).

[16] The City is concerned that the display of a flag on the flagpole in Nathan Phillips Square may be interpreted as the City's expression and, on the facts of this case, the City's endorsement of a nation that no longer exists. The City does not wish to become involved in international policy, as that is within the exclusive jurisdiction of the federal government. As well, given the diversity of Toronto's population, the City does not wish to become involved [page662] in political disputes among diaspora communities living in Toronto (Affidavit of Barbara Sullivan, para. 6). With respect to the heritage flag, Ms. Sullivan stated (at para. 20):

The applicant claims that its flag is a community flag and only incidentally the flag of a defunct nation. As an expert in protocol, I believe that that distinction would be lost on the vast majority of persons who view the flag. Having the flag flying from a flagpole owned by the City could very easily be interpreted as the City's recognition of the former nation of South Vietnam and such recognition could also be perceived as an insult to the current government of Vietnam, which is recognized by the Federal Government of Canada. That is why my office interprets the City's flag policy to exclude the flags of former nations or of separatist groups within recognized nations. In doing so, the City hopes to avoid unintentionally imparting a message of support for a nation that is contrary to the Government of Canada.

Thus, the purpose of the policy was not to suppress expression. Indeed, part of the purpose behind the Flag Policy is to facilitate expression, not suppress it, as the City offers the use of the flagpole to community and non-profit groups to mark important events for such groups.

[17] VAT submits that the effect of the policy is to limit its freedom of expression, because it cannot use the flagpole to raise its flag. However, s. 2(b) does not guarantee a right to any particular means of expression (Native Women's Assn. of Canada v. Canada, 1994 27 (SCC), [1994] 3 S.C.R. 627, [1994] S.C.J. No. 93, at para. 42).

[18] In some circumstances, s. 2(b) protects access to government-owned property. The test to be met by the party claiming access is set out in Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, [2005] S.C.J. No. 63, at para. 74:

The basic question with respect to expression on government-owned property is whether the place is a public place where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which s. 2(b) is intended to serve, namely (1) democratic discourse, (2) truth finding and (3) self-fulfillment. To answer this question, the following factors should be considered:

(a) the historical or actual function of the place; and

(b) whether other aspects of the place suggest that expression within it would undermine the values underlying free expression.

[19] The City concedes that s. 2(b) protects a right of public access to Nathan Phillips Square, subject to concerns for safety. However, the City submits that VAT has no right to use the flagpole in the square, as this is not public property to which the public has historically had access. I agree with this submission. The flagpole is not like an airport or a public street to which the public has unimpeded access as in Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, [1991] S.C.J. No. 3 or [page663] the Montréal case above. The flagpole is of a different nature, and its use is regulated, because the flags flown can and without question are perceived, rightly or wrongly, as the expression of the City's perspective and approval.

[20] Moreover, the effect of the City's policy is not to restrict the expression of VAT. Generally, government is under no obligation to provide a particular platform of expression to groups or individuals (Native Women's Association, supra, at para. 52). Here, VAT can use the square for its commemorative ceremony, and participants may carry and display the heritage flag. The fact that they cannot display their flag in the way they wish does not constitute a denial of freedom of expression.

[21] In the alternative, if the decision of the City is a denial of freedom of expression, the limitation on the use of the flagpole is a reasonable one within s. 1 of the Charter. The purpose of the Flag Policy, in refusing to fly flags of nations not recognized by DFAIT, is to prevent international diplomatic incidents and to prevent the City from becoming involved in international affairs, which are beyond its jurisdiction (Shell Canada Products Ltd. v. Vancouver (City), 1994 115 (SCC), [1994] 1 S.C.R. 231, [1994] S.C.J. No. 15, at paras. 100 and 103). As well, the City wishes to avoid conflicts within the many ethnic, religious and racial groups who have settled in Toronto. This meets the pressing and substantial objective test under s. 1, as is conceded by VAT.

[22] There is a rational connection between the objective of not creating international diplomatic incidents and the policy of flying flags of countries recognized by DFAIT. While there has been no disruption of the peace in the past when the heritage flag was flown, this alone does not show the lack of a rational connection between the objective and the restriction on the use of national flags unless the nation is recognized by DFAIT. The City has a general concern about the problems that may be created by flying flags of former nations or separatist groups within nations.

[23] Finally, the restriction on flying the heritage flag on the flagpole minimally impairs the freedom of expression of the applicant's members. They are free to display the heritage flag elsewhere in the square and to use it for their commemorative event. Therefore, the Charter challenge fails.

Issue no. 3: Did the City breach its duty of procedural fairness?

[24] VAT submits that the City is bound by a duty of procedural fairness, as its decision affects rights, privileges or interests. It submits that one aspect of that duty is the principle of legitimate expectations. The City's refusal to fly the heritage flag, [page664] after permitting it to be flown for 25 years, is said to be a denial of VAT's legitimate expectations.

[25] The doctrine of legitimate expectations does not apply in the circumstances of this case. Assuming that the City has a duty to act fairly in applying the Flag Policy, the doctrine of legitimate expectations, at most, gives rise to procedural rights (see Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, at para. 26; Donald J.M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada, loose-leaf (Toronto: Canvasback Pub., 1998), p. 7-42. The doctrine does not provide substantive rights. Therefore, VAT cannot rely on it to claim a right to have the heritage flag flown in perpetuity.

Issue no. 4: Was the decision of the Chief of Protocol unreasonable?

[26] The standard of correctness applies to the issue of a municipality's jurisdiction to make a particular decision. However, decisions of municipal councils, acting within their jurisdiction, are entitled to some deference (Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, [2000] 1 S.C.R. 342, [2000] S.C.J. No. 14, at paras. 27 and 35). In this case, the Chief of Protocol was exercising the power delegated to her by the municipal council to apply the Flag Policy. Her decision is entitled to some deference, as it involves both issues of fact and interpretation of the policy. VAT concedes that the standard of review is patent unreasonableness. Even if the standard is reasonableness, the decision meets that standard.

[27] VAT submits that the decision of the Chief of Protocol was patently unreasonable, because she failed to consider whether the heritage flag was a flag of a non-profit or charitable organization. VAT is a non-profit organization, and the heritage flag is its flag. Therefore, according to VAT, she unreasonably refused permission to fly the flag of a non-profit organization.

[28] The Flag Policy states that the flag of a nation will only be flown if that nation is recognized by DFAIT. The flag of the current state of Vietnam is not the heritage flag. While VAT has adopted this flag for its organization, the Chief of Protocol refused permission to fly it on the courtesy flagpole because this flag was not the official flag of Vietnam, and it could be perceived as offensive to the current nation of Vietnam were the flag flown. The Supreme Court of Canada has made it clear that municipalities do not have jurisdiction to involve themselves in matters of international relations, absent express or implied statutory authority to do so (Shell, supra, at paras. 100, 103). [page665]

[29] The Flag Policy does not create an entitlement in any group to use the courtesy flagpole. Here a community or non- profit organization has adopted the flag of a former nation. In other cases, such as the request to fly the flag of Catalonia, the flag is that of a group seeking special status within an existing nation. In all of these cases, the Chief of Protocol can reasonably refuse to permit the group's preferred flag to be flown in order to meet the City's objective of flying flags of nations recognized by DFAIT. Such a decision is consistent with the purposes behind the Flag Policy, as set out in the affidavit quoted earlier in these reasons. Although the Flag Policy is permissive, in that the flags of nations recognized by DFAIT may be flown on certain days, the policy, by implication, would exclude the flying of flags of former nations or states that have been adopted by non-profit or charitable organizations, because their display may be offensive to the current governments of nations recognized by DFAIT.

[30] As the decision of the Chief of Protocol was a reasonable application of the Flag Policy, this ground for judicial review fails.

Conclusion

[31] Given my conclusions on these issues, I need not address the issue of the remedy of mandamus. The application for judicial review is dismissed. If the parties are unable to agree on costs, they may make written submissions within 30 days of the release of this decision.

Application dismissed.