CITATION: Guelph and Area Right to Life v. City of Guelph, 2022 ONSC 43
DIVISIONAL COURT FILE NO.: 260/21 and 261/20
DATE: 20220126
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
M. Edwards R.S.J, McKelvey and Favreau JJ.
BETWEEN:
Guelph and Area Right to Life
Applicant
– and –
City of Guelph
Respondent
– and –
Association for Reformed Political Action Canada, Abortion Rights Coalition of Canada and Christian Heritage Party
Interveners
Carol Crosson, for the Applicant
Alison Thornton, for the Respondent
Tabitha Ewert, for the Intervener Association for Reformed Political Action Canada
Emma Phillips and Mary-Elizabeth Dill, for the Intervener Abortion Rights Coalition of Canada
John Sikkema, for the Intervener Christian Heritage Party
HEARD at Brampton (by videoconference): June 15, 2021
Reasons for Decision
BY THE COURT:
Overview
[1] The applicant, Guelph and Area Right to Life, brings two applications for judicial review challenging decisions by the respondent, City of Guelph, to remove three anti-abortion advertisements from buses owned and operated by the City of Guelph.
[2] The applicant argues that the City failed to apply the test mandated by the Supreme Court of Canada in Doré v. Barreau du Québec, 2002 SCC 20 and Loyola High School v. Quebec (Attorney General), 2015 SCC 12, that required the City to balance its legislative objectives against the applicant’s right to freedom of expression. The applicant also argues the City improperly fettered its discretion by delegating the decisions to Ad Standards, which is a self-regulatory body for Canada’s advertisement industry.
[3] For the reasons below, we agree with the applicant that the City’s decisions are unreasonable because the City did not engage in the balancing exercise required by the Doré/Loyola test. This does not mean that the City is required to post the applicant’s advertisements. Rather, the matter is remitted back to the City to be decided in accordance with the requisite analysis.
Background facts
City of Guelph policy on advertising and complaints process
[4] In 2016, the City adopted an “Advertising Acceptability Policy” (the “Policy”). The City’s evidence is that the Policy was adopted in response to concerns that City staff should not have to make decisions about advertising on City property without guidelines and a proper decision-making process. The Policy was adopted after extensive deliberation. The Policy explicitly incorporates the Canadian Code of Advertising Standards (the “Code”), which sets out advertising standards developed by the advertising industry.
[5] The stated purpose of the Policy is to “ensure that all advertising and sponsorships, including those administered by a contractor, is consistent with the Canadian Code of Advertising Standards, and consistent with the City’s corporate values, image and strategic goals”.
[6] The Policy states that all advertisements must comply with the Ontario Human Rights Code, the Canadian Charter of Rights and Freedom and the Criminal Code of Canada.
[7] The Policy also states that the criteria for accepting an advertisement include compliance with the standards in the Code, including that “the advertisement is not misleading or a false representation”.
[8] The Code is incorporated as Schedule 1 to the Policy. The Code states that it is “broadly supported by industry and is designed to help set and maintain standards of honesty, truth, accuracy, fairness and propriety in advertising”.
[9] Clause 1.0 of the Code addresses the requirement for “accuracy” and “clarity” in advertising. The Code describes this requirement in part as follows:
In assessing the truthfulness and accuracy of a message, advertising claim or representation under Clause 1 of the Code the concern is not with the intent of the sender or precise legality of the presentation. Rather the focus is on the message, claim or representation as received or perceived, i.e. the general impression conveyed by the advertisement.
Advertisements must not contain inaccurate, deceptive or otherwise misleading claims, statements, illustrations or representations, either direct or implied, with regard to any identified or identifiable product(s) or service(s)…
[10] Clause 14.0 of the Code addresses “Unacceptable Depictions and Portrayals” and provides as follows:
It is recognized that advertisements may be distasteful without necessarily conflicting with the provisions of this Clause 14; and the fact that a particular product or service may be offensive to some people is not sufficient grounds for objecting to an advertisement for that product or service.
Advertisements shall not:
• condone any form of personal discrimination, including that based upon race, national origin, religion, sex or age;
• appear in a realistic manner to exploit, condone or incite violence; nor appear to condone, or directly encourage, bullying; nor directly encourage, or exhibit obvious indifference to, unlawful behaviour;
• demean, denigrate or disparage one or more identifiable persons, group of persons, firms, organizations, industrial pr commercial activities, professions, entities, products of services, or attempt to bring it or them into public contempt or ridicule;
• undermine human dignity; or display obvious indifference to, or encourage gratuitously and without merit, conduct or attitudes that offend the standards of public decency prevailing among a significant segment of the population.
[11] The Policy explicitly gives the City the ability to reconsider whether to refuse an advertisement:
Notwithstanding that the City has not refused approval of advertising prior to its display, the City may subsequently, after display of the advertising has begun, require immediate (within 24 hours) removal of the advertising if the City determines it does not comply with the provisions of this policy.
[12] The Policy provides that any member of the public who objects to an advertisement can make a complaint to Advertising Standards Canada (referred to as “Ad Standards”). Similarly, any advertiser who disagrees with a decision made by the City can submit a complaint to Ad Standards.
[13] Ad Standards is a national non-profit self-regulatory body. When it receives a complaint, Ad Standards investigates the complaint, including giving the advertiser an opportunity to provide its position. Ad Standards’s decisions are made by a majority vote of its Council members. Ad Standards has an internal appeals process that allows a complainant or an advertiser to appeal decisions. The appeal is considered in writing.
[14] The City is not a party to the complaint process before Ad Standards. The City’s evidence is that the outcome of a complaint will likely only come to the City’s attention if Ad Standards finds that an advertisement is in breach of the Code and the advertiser does not voluntarily remove the advertisement. In such cases, the City may become involved for the purpose of deciding whether to require the advertiser to remove the advertisement.
Applicant’s advertisements
[15] The applicant is a registered charity that describes itself as “a non-denominational human rights organization whose mission is to promote greater respect and worth for all human beings from conception/fertilization to natural death”. The applicant advocates against abortion and other matters such as against assisted death.
[16] The applicant has posted advertisements on City buses and other property for the past twenty years.
[17] The City does not contract directly with advertisers. Rather, currently the City has a contract with a company referred to as Streetseen Media (“Streetseen”) that solicits and charges a fee for advertisements placed on City buses. Under the contract between Streetseen and the City, Streetseen agrees to comply with the City’s Policy on advertisements and also to remove any advertisements that violate the Policy at the City’s request.
[18] In addition, the contracts between Streetseen and its advertisers include a term that allows the City to approve advertisements and/or require that they be removed:
The Advertiser agrees that nothing in this contract shall be deemed to require the Company to undertake or prepare any advertising, promotional materials, publicity or other materials which may be judged to be misleading, libelous, unlawful, offensive, indecent or otherwise prejudicial to the interests of any party. All advertising material is subject to the approval of the Company and the municipalities where it is to be displayed. This approval may be withdrawn at any time…
[19] In April 2019, the applicant sent five proposed advertisements to Streetseen, requesting that they be posted on the outside of City buses.
[20] Streetseen shared the proposed advertisement with the City. The City reviewed the advertisements and advised Streetseen that it approved the advertisements subject to the addition of a standard form disclaimer.
[21] Streetseen then advised the applicant that the advertisements would require a disclaimer stating that “The opinions expressed in this advertisement or by the sponsor of this advertisement, do not in any way represent the opinions of, and are not endorsement by, the City of Guelph”. The applicant modified the advertisements accordingly, after which Streetseen advised the applicant that the advertisements were approved for posting.
[22] Three of the five advertisements were as follows:
a. Advertisement No. 1: The advertisement contains a blurry picture of a woman holding an ultrasound depicting a fetus, with the caption “Life Should Be the Most Fundamental Human Right – Say No to Abortion”. The advertisement includes the applicant’s name in logo form and the disclaimer referred to above.
b. Advertisement No. 2: On one side, the advertisement contains a photograph of a pregnant woman, and, on the other side, a photograph of the same woman holding a baby. The caption reads “Human rights should not depend on where you are. Say no to abortion”. The advertisement also includes the applicant’s name in logo form and the disclaimer referred to above.
c. Advertisement No. 3: The advertisement contains the photo of a fetus in a uterus. The caption reads “What about her choice? Say No to Abortion”. Again, the advertisement includes the applicant’s name in logo form and the disclaimer referred to above.
[23] The two other advertisements are not at issue on this application. Advertisement No. 4 addresses the issue of assisted death and includes the caption: “Why Assisted Suicide for Some, and Suicide Prevention for Others”. Advertisement No. 5 includes a photograph of a woman holding a pregnancy test and includes the caption: “Pregnant? Need Help? Call or Text 519.803.0313 – Sanctuary Outreach Crisis Pregnancy Support Program”.
Complaints and removal of Advertisement No. 1
[24] After the advertisements were posted, the City received complaints about Advertisements No. 1 to 3.
[25] The City first received a complaint about Advertisement No. 1 in October 2019. In accordance with the Policy, the City referred the complainant to Ad Standards.
[26] On September 17, 2019, Ad Standards notified the applicant in writing about the complaint. The complaint stated that Advertisement No. 1 was inaccurate because it suggests that fetuses are human beings despite the fact that the Criminal Code of Canada provides that a child becomes a human only when “it has completely proceeded, in a living state, from the body of its mother”. Ad Standards gave the applicant an opportunity to respond to the complaint.
[27] On November 6, 2019, Ad Standards notified the applicant that it found that Advertisement No. 1 contravened Clause 1 of the Code, which as reviewed above deals with the accuracy of content. In its decision, Ad Standards made the following findings:
The complainants alleged the advertisement was misleading because it conveyed the impression that the advertised fetus is “human”. One of the complainants also alleged that the ad undermined women’s human rights when facing an unwanted pregnancy.
In its response, the advertiser stated that the advertisement is an opinion piece communicating the views of its group. The advertiser also submitted that one of the complainants is conflating the word “human” and “person”; personhood is a legal concept, whereas being “human” is a biological one.
Council was clear in its commitment, as an independent body, to respect the rights of advocacy organizations to advertise their position. It was Council’s unanimous decision that the ad did not demean or disparage women who have had or are considering having an abortion, nor did it undermine women’s rights when facing an unwanted pregnancy. The imagery in no way offended standards of public decency.
However, in keeping with previous findings by this body, Council looked to the Criminal Code to assess the meaning of “human”. A child only becomes a “human being” under this law after live birth. By including the ultrasound picture of a fetus in connection with the word “human”, this distinction between pre- and post- birth was blurred and created a misleading general impression in the view of Council. By implying that a fetus could have “human” rights, Council found that the ad was misleading and thereby in contravention of Clause 1 of the Code. Two Council members did not find that the ad was misleading, and felt that a standard other than the definitions under the Criminal Code should be applied in assessing claims of life, human status and personhood. However, this was not the prevailing view of Council.
[28] After receiving this decision, a representative of Streetseen wrote to the applicant to advise that the City was exercising its rights under the Policy to remove Advertisement No. 1. The email only referred to the Ad Standards ruling in support of this decision. A subsequent follow up email from the City to the applicant confirmed the decision and only referred to the Ad Standards ruling as the rationale for removing Advertisement No. 1 from City buses.
[29] Subsequently, the City and the applicant exchanged further correspondence.
[30] In that context, the applicant asked about appeal routes for challenging the decision. The City responded by advising that there was no appeal route with the City but that the applicant could pursue the matter further with Ad Standards. The applicant did not pursue an appeal with Ad Standards.
[31] The applicant also asked what modifications it could make to Advertisement No. 1. The City did not respond to this inquiry.
[32] Finally, the applicant also asked the City to provide additional reasons for its decision. In response, in an email dated February 5, 2020, a City representative stated “the removal of the ad from the Gulph Transit fleet was the direct result of a ruling by ASC that concluded the advertisement was misleading and therefore in contravention of Clause 1 of the Canadian Code of Advertising Standards”.
[33] For the purposes of the application, the City representative who was partially responsible for the decision to remove Advertisement No. 1 swore an affidavit. In that context, she supplemented the rationale for the decision to remove Advertisement No. 1 by stating as follows:
AdStandards decision #543116 prompted me to undertake a review of Advertisement 1 in the context of the Charter, the Code, the Policy and the decision by AdStandards. Following this review, I concluded that the ad was in violation of s.2.1.i of the Policy. This section states that the City will not accept misleading advertisements for posting on City property.
I considered the AdStandards reasons in this case to be persuasive. While the Applicant chooses its language to be attention-grabbing and thought-provoking, it must be remembered that the message is a comment on the legal actions of members of the Guelph community who have, or might chose [sic] to, procure an abortion or provide abortion services. The City as the neutral party making its space available for public advertising must insist that messaging be scrupulously honest and fair. The AdStandards reasons persuaded me that this standard was not met by Advertisement 1. Given that the City reserves the right to remove an offending ad pursuant to s.3.1 of the Policy, directions were issued from Guelph Transit to StreetSeen that Advertisement 1 should be removed.
Complaint and removal of Advertisements No. 2 and 3
[34] Following the ruling with respect to Advertisement No. 1, Ad Standards received complaints about Advertisements No. 2 and 3. Ad Standards again found that these advertisements violated the Code.
[35] With respect to Advertisement No. 2, in a decision dated February 25, 2020, Ad Standards found that the advertisement was inaccurate and demeaning to women. In doing so. Ad Standard made the following findings:
The Standards Council met on April 2019, to consider a complaint about the same advertisement that was published by a different advertiser. At the time, the impression conveyed to all members of Council who adjudicated the complaints was that the pregnant woman featured in the billboard advertisement undeniably was in the very late stage of her pregnancy. The message conveyed by this image is that women in this late stage of pregnancy routinely have, and exercise, the choice of aborting the foetus they carry.
However, according to statistics from the Canadian Institute for Health Information it is extremely rare that abortions are, or may be, performed in Canada at this late stage of pregnancy; and certainly not on demand by the pregnant mother. Advertising that conveys a contrary impression, as this advertising did to Council, constitutes a contravention of Clause 1(a) of the Code.
Additionally, it was Council’s opinion that by presenting such a dramatic but faulty proposition of women this close to the time of their delivery being able to freely choose to abort, the advertisement also contravened Clause 14(c) of the Code by demeaning, denigrating and disparaging women who may have to consider abortion, as a viable option, including women who need to consider such a procedure for medical reasons on the recommendation of their medical advisors.
Council, therefore, found that the advertisement was misleading contrary to Clause 1(a) of the Code, and that it also demeaned women who had abortions, contrary to Clause 14(c).
[36] With respect to Advertisement No. 3, in a decision also dated February 25, 2020, Ad Standards found as follows:
The complainants alleged the advertisement promoted misleading information about abortion by suggesting that a fetus has a choice. Using the pronoun “her” and suggesting that a fetus has a choice could trigger painful reactions from women who have had an abortion or miscarriage.
Although Ad Standards requested a response from the advertiser, there was no response sent to Council.
In its discussions, Council carefully considered the advertisement as a whole, as well as the individual elements of the ad. Council deliberated the general impression created by the use of the word “her”, and, in particular, the phrase “her choice”. In the view of the majority of Council, to describe the fetus as “her” creates an impression of personhood when, in fact, the fetus is not yet a human being under law. Moreover, the suggestion that a fetus has the capacity of choice was misleading in the view of Council. Without any evidence provided to the contrary, the ad was found to be in violation of Clause 1(a) of the Code.
Council further noted that because the advertisement falsely implied that a fetus has the capacity of choice, it in turn suggested that the fetus’s choice is taken away by a woman who chooses to have an abortion. Council determined that this demeans or disparages women who have had, or who are contemplating, an abortion, thereby contravening Clause 14(c) of the Code.
Council did not find that the imagery offended standards or public decency in this case. As such, most Council members agreed that the advertisement would not have been in contravention of the Code if it featured the same image with only the second half of the copy, saying “Say No to Abortion”.
[37] As a consequence of these rulings, the City directed that Advertisements No 2 and 3 be removed from City buses.
[38] Again, at the time the City gave directions to Streetseen to remove Advertisements No. 2 and 3 from the City buses, it only referred AdStandards’s rulings. However, in her affidavit, the City’s representative again supplements the justification for the City’s decisions to remove these two additional advertisements:
Reviewing the two AdStandards decision letters, the case summaries, and the citizen communications referenced above, City staff under my direction undertook a fresh review of Advertisement 2 and Advertisement 3. We considered the City’s legal responsibilities under the Charter, the Policy and the Code, and with benefit of comments from other staff, I ultimately concluded that the two advertisements were also in violation of s.2.1.i of the City’s Policy.
Specifically, in light of the fact that a fetus does not have legal or factual agency, I agree with AdStandards that the reference to a fetus as “her” and to “human rights” were unfairly pejorative of women who make the legal and highly personal choice to obtain an abortion. When combined, as these advertisements were, with images of a fetus at a late stage development, where abortions are not typically performed except where there are compelling medical reasons, I concur with AdStandards’ reasoning that both advertisements also raise concerns of gender equity and fair gender portrayal. On balance, the City’s position was and is that continuing to run these advertisements would not reflect the balance that the City’s Policy seeks to strike between the advertiser’s right to convey their point of view and the right of affected members of the public to be free from gender discrimination and misleading statements about their access to legal medical procedures.
Positions of the parties and issues
[39] The applicant brought two separate applications for judicial review. The first application challenges the City’s decision to remove Advertisement No. 1 and the second application challenges the decisions to remove Advertisements No. 2 and 3. While there are two separate applications for judicial review, they raise similar issues and were argued together.
[40] The applicant argues that the City’s decisions to remove its advertisements are invalid for two reasons. First, the City’s decisions violate the applicant’s section 2(b) Charter rights to freedom of expression. Second, the City improperly fettered its discretion by delegating the decision-making process to Ad Standards. In addition to these two grounds for invalidating the decisions, the applicant argues that the City cannot rely on its affiant’s evidence justifying the decisions because those justifications were not part of the original decision.
[41] The City concedes that the decisions to remove the advertisements limit the applicant’s right to freedom of expression under section 2(b) of the Charter, but argues that the decision is a proportionate and reasonable balancing of rights under the test established by the Supreme Court of Canada in Doré/Loyola. The City also argues that it has not improperly fettered its discretion because, while it considered the Ad Standards rulings, it came to the conclusion that the advertisements should be removed independently. The City also disagrees with the applicant’s position regarding the paragraphs in its affidavit justifying the decision.
[42] The interveners Association for Reformed Political Action and Christian Heritage Party support the applicant’s position. The Association for Reformed Political Action specifically takes issue with the City’s reliance on Ad Standards’s rulings, arguing that Ad Standards did not nor does it have the capacity to engage in the balancing exercise required by the Supreme Court in Doré/Loyola. The Christian Heritage party takes issue with Ad Standards’s reliance on the Criminal Code to define “human being”, arguing that this ignores a legitimate political debate on the issue.
[43] The intervenor Abortion Rights Coalition of Canada supports the City’s position on the application for judicial review. This intervener argues that the City’s decision is reasonable because it represents a proportionate balance between the significant harm the applicant’s proposed advertisements cause to the Charter protected rights of women and people capable of pregnancy as compared to the minimal impairment to the applicant’s right to freedom of expression.
[44] In order to address the issues raised by the parties, the analysis below is structured as follows:
a. A review of the test to be applied and the applicable standard of review;
b. A review of prior decisions in Canada that have dealt with similar issues;
c. Consideration of the proper record before the Court;
d. Consideration of whether the City’s decisions to remove the advertisements are reasonable; and
e. Consideration of whether the City improperly fettered its discretion.
Applicable test and standard of review
[45] The core issue in this case is whether the City’s decisions to remove the applicant’s three advertisements violated its section 2(b) rights under the Charter.
[46] Section 2(b) of the Charter provides that everyone has the “fundamental … freedom of thought, belief, opinion and expression…” Section 2(b) protects even unpopular and disturbing speech: see, for example, R. v. Zundel, [1992] 2 S.C.R. 731. However, freedom of expression is not unlimited.
[47] In this case, as indicated above, the City concedes that the removal of the three advertisements limits the applicant’s right to freedom of expression. However, the City argues that its decisions represent a reasonable limit on the applicant’s rights.
[48] In circumstances where legislation or government policy purports to limit section 2(b) Charter rights, the courts apply the test developed under section 1 of the Charter to determine if the legislation or policy at issue is a reasonable limit on the right. In circumstances, such as here, where the right to freedom of expression is limited by an administrative decision-maker’s discretionary decision, the courts are to apply the test developed by the Supreme Court in Doré and Loyola.
[49] Under Doré/Loyola, the administrative decision-maker is first required to consider the statutory objectives at issue. The decision-maker must then consider how the Charter value at issue will best be protected in view of the statutory objectives. This is meant to be a proportionality analysis. The decision-maker is to balance the severity of the interference with Charter values against the statutory objective.
[50] Courts are to review this balancing exercise on a reasonableness standard. The court is to assess whether the decision maker has properly balanced Charter values against the statutory objectives. The court is to conduct this assessment on a reasonableness standard. As held in Doré, at para. 58, “[i]f, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable”.
[51] In Loyola, at para. 40, the Supreme Court clarified that this is meant to be a “robust” exercise and that Charter protected rights are to be “affected as little as reasonably possible”:
A Doré proportionality analysis finds analytical harmony with the final stages of the Oakes framework used to assess the reasonableness of a limit on a Charter right under s. 1: minimal impairment and balancing. Both R. v. Oakes, [1986] 1 S.C.R. 103, and Doré require that Charter protections are affected as little as reasonably possible in light of the state’s particular objectives: see RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 160. As such, Doré’s proportionality analysis is a robust one and “works the same justificatory muscles” as the Oakes test: Doré, at para. 5.
Prior decisions dealing with anti-abortion advertisements on municipal buses
[52] The Supreme Court of Canada has recognized that section 2(b) Charter rights extend to advertising on public transportation. In Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, the Supreme Court established that, where public transit authorities make advertising space available on their buses, their policies must comply with the Charter. In that case, the Court held that a city’s policy of excluding political advertisements while allowing commercial advertisements violated section 2(b) of the Charter. In the context of analyzing whether the policy was justified in a free and democratic society, at para. 77, the Court stated political speech is a “highly valued form of expression” and that public buses serve “as an important place for public discourse”.
[53] The specific issue of decisions by transit authorities limiting anti-abortion advertisements has already generated significant litigation in Canada. In these cases, the courts have applied the Doré/Loyola test to determine whether municipalities have reasonably balanced legislative objectives against the section 2(b) Charter rights of the party seeking to post advertisements. A review of these cases assists in understanding the principles that apply in this case.
[54] In Canadian Centre for Bio-Ethical Reform v. City of Peterborough, 2016 ONSC 1972 (Div. Ct.), the City of Peterborough had refused to post advertisements prepared by the applicant in that case that contained images and messages advocating against abortion. The applicant brought an application for judicial review. The City of Peterborough did not appear at the hearing and consented to an order that it would accept the applicant’s advertisements for posting. In that context, the Court declined to make a declaration to the effect that the respondent infringed its Charter rights, stating, at para. 25, that the lack of evidence from the City of Peterborough and the absence of an adversarial context did not provide the Court with a “full understanding of the statutory objectives being pursued by the Respondent and the ability to analyze whether the Applicant’s freedom of expression was being limited as little as possible in all of the circumstances”.
[55] In CHP v. City of Hamilton, 2018 ONSC 3690 (Div. Ct.), this Court dealt with another circumstance in which a municipality decided to remove advertisements that challenged equality rights for transgendered people. While the advertisements did not deal with abortion, they nevertheless raised similar legal issues. In that case, the Court granted an application for judicial review challenging the City of Hamilton’s decision because the municipality had accorded no procedural fairness to the applicant when it decided to remove the advertisements. In that context, at para, 61, the Court considered that the municipality had provided no evidence the decision-maker “resolved the competing values inherent in the decision she was to make. Nowhere did she (or any member of city staff or counsel) explain how the city balanced the applicants’ rights to engage in political speech versus transgendered citizens’ right to be free from discriminatory speech. Indeed, there is nothing in the record to suggest that the balancing was ever undertaken.”
[56] In Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2018 ABCA 154, the Court of Appeal of Alberta upheld a decision by the City of Grande Prairie declining to post advertisements that contained similar images and messages to those addressed in the City of Peterborough case. In that context, the Court accepted that Grand Prairie’s objective of providing a safe and welcoming transit system was a valid objective. The Court also accepted that rejecting “highly offensive or disturbing” materials has a rational connection to that objective. The Court went on to consider whether the restraint on the applicant’s free speech was proportional to the statutory objective and whether the applicant’s rights were minimally impaired. In doing so, the Court considered a number of factors that the Court said were all relevant but not conclusive on their own. The factors the Court considered are as follows:
a. Hate speech: The Court held that, if the advertisements had qualified as hate speech, that on its own would have justified their removal. However, at para. 71, the Court held that, even if the advertisements were not sufficient to give rise to a criminal conviction, the fact that they could incite hatred toward women who obtain abortions and their doctors “is a strong factor demonstrating that the transit manager’s decision was a reasonable and proportionate limitation on free expression”.
b. Other Charter values: The Court suggested that the rights of women under sections 7 and 15 of the Charter may be relevant, but that these issues were not argued in that case.
c. Accuracy: The Court held, at para. 73, that whether the advertisements were accurate or misleading could be relevant to the analysis, but that “[c]are must be taken in applying these criteria, because mere differences of opinion, or differences on the moral or social implications of various facts, do not amount to ‘inaccuracy’”.
d. Industry standards in advertising: The Court held that reliance on the Code or standardized policies and rulings made by Ad Standards can serve as an indication that the municipality engaged in the Doré balancing exercise.
e. Harm: The Court held, at para. 79, that freedom of expression protects “a certain amount of unpleasant, disagreeable, and even repugnant speech”. However, the Court also held, at para. 80, that “if it could be demonstrated that a form of expression was likely to cause harm to a segment of the audience beyond mere repugnance that would be a relevant factor in the Doré analysis”. The Court also accepted that the risk of harm to children would be a relevant consideration.
[57] Ultimately, in Grande Prairie, at para. 91, the Court accepted that there were “many reasons justifying the respondent’s rejection of this advertising: its hateful nature, its likely audience, its potential for harm, possibly its accuracy, its non-compliance with industry standards, and its extreme tone”. The Court went on to consider that the rejection of the advertisement was a minimal impairment in that case because the municipality did not make a blanket decision to reject all advertisements advocating against abortion; it was still open to the applicant in that case to submit an advertisement that complied with the municipality’s policy on advertising.
[58] In Canadian Centre for Bio-Ethical Reform v. South Coast British Columbia Transportation Authority, 2018 BCCA 344, the Court of Appeal for British Columbia granted an order quashing a decision made by a transit authority that refused to post an anti-abortion advertisement. The advertisement in that case was essentially the same as in Grande Prairie. In that context, the Court found that the reasons provided by the authority were incapable of review because they did not take account of the applicant’s Charter rights. The Court remitted the matter back to the authority on the basis that it would not be appropriate for the Court to substitute its decision for the discretionary decision of the authority. It was up to the authority to engage in the proper balancing exercise. In reaching this conclusion, at para. 40, the Court explicitly rejected the approach taken by the Court of Appeal of Alberta in Grande Prairie to the effect that the Court, rather than the original decision-maker, could consider all objections that could have been made to the advertisements and conduct its own Doré/Loyola analysis.
[59] Similarly, in Lethbridge and District Pro-Life Association v Lethbridge (City), 2020 ABQB 654, the Court of Queen’s Bench of Alberta granted an application for judicial review of a decision refusing to post five anti-abortion advertisements on public buses. Some of the advertisements at issue in that case are similar to the three advertisements at issue in this case. In that case, the municipality had provided what the Court described as “detailed reasons” for rejecting the advertisements. The reasons the municipality provided for its decision are similar to those here, and include concerns over accuracy and the demeaning of women. The Court reviewed those reasons and found that they did not represent a proper balancing of the applicant’s section 2(b) Charter rights against the municipality’s legislative goals and other rights. In reaching this conclusion, the Court’s findings included the following:
a. The Court held that a review of the reasons provided by the municipality did not demonstrate that it had engaged in the necessary balancing required by the Doré/Loyola test. Specifically, there was nothing more than a passing mention about the applicant’s section 2(b) Charter rights.
b. The Court rejected the municipality’s reliance on the inaccuracy of the advertisements. The Court found that the advertisements expressed opinions rather than facts and also that “the right to freedom of expression does not support the contention that the expression must be widely accepted, accurate or scientifically verifiable”.
c. The Court accepted the municipality’s position that the public complaints it received were some evidence of harm caused by the advertisements. However, the Court suggested that the complaints were not sufficient to make finding of harm that would outweigh the applicant’s right to freedom of expression. In this regard, the Court engaged in a fairly granular review of the nature of the complaints.
d. The Court accepted the municipality’s position that compliance with the Code is relevant to the Doré/Loyola analysis. However, the Court found that the municipality’s reliance on the Code was excessive for two reasons. First, the Code itself stipulates that it does not apply to political speech, thereby suggesting that it provides minimal assistance in evaluating advertisement of this nature. Second, the municipality’s reliance on the Code and rulings by Ad Standards did not provide any evidence that the municipality performed the balancing and minimal impairment analysis required by Doré/Loyola.
[60] In Lethbridge, besides finding that the municipality failed to undertake the Doré/Loyola and that the decision was thereby unreasonable, the Court also found that there was a reasonable apprehension of bias on the part of the decision-maker. Ultimately, the Court remitted the matter back to the municipality to decide afresh with a strong suggestion that the matter should go before a different decision-maker.
[61] What emerges from the cases reviewed above is that the Doré/Loyola analysis requires an actual balancing and minimal impairment analysis. In conducting this analysis, the decision-maker can consider many factors, including the nature and impact of the advertisements, whether the advertisements are likely to cause harm, including by infringing other Charter values, and whether the advertisements comply with general advertising standards such as those set out in the Code. However, in considering these factors, the municipality must also weigh the advertisers’ right to freedom of expression under section 2(b) of the Charter and whether the proposed decision constitutes a reasonably minimal impairment of that right.
The proper record before the Court
[62] Before turning to the application of these principles to the facts in this case, it is necessary to address the issue raised by the applicant regarding the proper record before the Court.
[63] As indicated above, the applicant takes the position that the reasons for decision that this Court can consider are limited to the reasons originally provided by the City. Those reasons cannot be supplemented through the statements made by the City’s affiant in her affidavit. In contrast, the City invites the Court to take a very liberal approach to the scope of the record, arguing that the Court can and should look for other indicia beyond the reasons originally provided for the decision.
[64] The Court of Appeal of Alberta wrestled with a similar problem in Grande Prairie. In that context, the Court rejected an argument that the Court can only look at the reasons originally given by the decision maker. The Court’s rationale for this approach, at para. 36, is that the “transit system manager” could not be expected to engage in a Doré/Loyola analysis:
In this respect there is a distinction between the reason that the transit manager gave for rejecting the advertisement, and the Doré analysis on whether that decision was constitutionally justified. The transit manager never purported to do a Doré analysis, and so there is no Charter driven “reason” of his to be supplemented. Therefore, it is beside the point to argue that judicial review is usually limited to the “record”, because in this case the constitutional justification of the decision is not engaged at all by the decision on the record as it was originally communicated. If the respondent could only rely on the Doré analysis done by its transit manager, this appeal would have to be summarily allowed, because there was no such analysis.
[65] In that context, the Court went on to treat the municipality’s arguments in the court proceedings as its rationale for the decision to exclude the advertisements at issue in that case. Ultimately, as reviewed above, this led the Court to accept that the decision to reject the advertisements was reasonable because it represented a proportionate balancing between the municipality’s legislative objectives and the appellant’s rights to freedom of expression.
[66] In contrast, in South Coast, the Court of Appeal for British Columbia explicitly rejected this approach. In doing so, the Court made clear that, at a minimum, the original decision must demonstrate that the decision-maker engaged in the Doré/Loyola balancing exercise. The Court reasoned that it is not for the court to step into the shoes of the decision maker and supplement the decision with reasons that could have been provided:
In the case at bar, there are no dots for a court to connect. In denying the CCRB’s advertisement request, Mr. Beaudoin did not acknowledge the CCRB’s right to freedom of expression, let alone explain how the denial represents a proportionate balance with TransLink’s objectives. Accordingly, I would not endorse the view, expressed in Grande Prairie (City) (Alta. C.A.) at para. 40, that in a case such as this one it is open to the decision-maker to ask the court to consider “all possible objections to an advertisement, and all justifications for its rejections.” Doing so would subvert the deferential role of a reviewing court and, in the words of Rennie J., amount to “speculat[ion] as to what the tribunal might have been thinking”.
[67] In our view, the approach in South Coast is more consistent with the Doré/Loyola analysis and fundamental principles of administrative law.
[68] As reviewed above, the analysis prescribed by Doré/Loyola requires the court to assess whether an administrative decision maker has performed the requisite balancing of interests. On its face, this deferential standard of review does not permit the court to step into the shoes of the decision maker and perform the analysis that should have been conducted by the administrative decision maker. This is in fact how the Supreme Court approached the facts in Doré. At para. 66, the Court reviewed the competing values of “open, and even forceful, criticism of our public institutions with the need to ensure civility in the profession”, and then stated that disciplinary bodies “must demonstrate that they have given due regard to the importance of the expressive rights at issue, both in light of an individual lawyer’s right to expression and the public’s interest in open discussion”. The Court went on, at para. 70, to analyze the Disciplinary Council’s decision for indicia that it had engaged in this balancing exercise. Ultimately, the Court held that the Discipline Council’s decision to reprimand Mr. Doré was a reasonable balance of his “expressive rights with the statutory objectives”.
[69] The principle that the Court cannot substitute its own analysis for that of an administrative decision-maker exercising discretion is reinforced by recent decisions of the Supreme Court of Canada dealing with the reasonableness review.
[70] In Delta Air Lines Inc. v. Lukács, 2018 SCC 2, the Supreme Court rejected an argument that a court could substitute its own justification for an administrative decision that contained admittedly flawed reasoning. In that context, the Court held, at para. 27, that doing so “would undermine, if not negate, the vital role of reasons in administrative law… If we allow reviewing courts to replace the reasons of administrative bodies with their own, the outcome of administrative decisions becomes the sole consideration… This goes too far. It is important to maintain the requirement that where administrative bodies provide reasons for their decisions, they do so in an intelligible, justified, and transparent way.”
[71] The Supreme Court reinforced this principle in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. In Vavilov, the Court revisited the standard of review analysis, including providing significant guidance on how courts are to perform the reasonableness standard of review. In that context, at paragraph 83, the Court stated “that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome”. The Court went on to emphasize that the court’s role is not to reverse engineer the rationale for an administrative decision. Rather, the focus must be on the rationale for the decision given by the decision-maker.
[72] The City relies on the Supreme Court of Canada’s decision in Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, to argue that the court should take an expansive approach to the reasons for decision. In that case, at para. 29, the Court stated that formal reasons were not required for the Law Society’s decision. The Court could consider the reasons that could have been offered, including through review of the speeches given by Benchers of the Law Society.
[73] There is no doubt that many decision-making processes do not lead to formal reasons. The Supreme Court recognized this in Vavilov, where, at para. 91, the Court emphasized that administrative decisions are not to be held to a standard of perfection. In reviewing a decision for reasonableness, the Court should take account of the context in which the decision was made, including the decision-maker’s expertise and the history and context of the proceedings. However, as the Court emphasized at para. 95, “reviewing courts must keep in mind the principle that the exercise of public power must be justified, intelligible and transparent, not in the abstract, but to the individuals subject to it. It would therefore be unacceptable for an administrative decision maker to provide an affected party formal reasons that fail to justify its decision, but nevertheless expect that its decision would be upheld on the basis of internal records that were not available to that party.”
[74] In this case, the City asks that this Court take account of the justifications for the decision provided by its affiant on the application for judicial review. In our view, this evidence is not properly before the Court. During the contemporaneous communications between the City and the applicant at the time the decision was made to remove the advertisements, the only justification provided by the City was reliance on the rulings made by Ad Standards. In our view, based on the principles reviewed above, it is improper for the City to try to supplement its reasons for decision for the purpose of the application for judicial review by having the decision maker state after the fact that she considered the matters she was required to consider at the time she made the decision in the absence of any indicia that she did so at the time of the decision. The role of the court on an application for judicial review is to review the reasonableness of the decision made, including the reasons for the decision. What was in the mind of the decision maker but not articulated at the time cannot be relevant to this exercise.
[75] Having said this, we are mindful of the comments made by the Court of Appeal of Alberta in Grande Prairie to the effect that a transit manager cannot be expected to engage in the Doré/Loyola analysis. This no doubt poses a challenge for municipalities when having to consider whether to post contentious advertisements. However, in our view, a municipality cannot avoid making a proper decision by saying that its staff are not qualified to undertake the Doré/Loyola analysis. These are difficult and contentious decisions. They require balancing competing interests and nuanced principles. But, if a municipality wants to sell advertisement space on its public buses, it must comply with the law and it must have decision makers in place capable of performing the Doré/Loyola analysis when confronted with contentious advertising. The decision-maker’s reasons do not have to be perfect nor do they have to lengthy or sophisticated, but they must demonstrate the rationale for the decision.
[76] Finally, in this case, as we will review below, even if we had accepted that the City’s after the fact rationales for the decisions was properly before the Court, they do not serve to fix the defects in the original decisions. They do not demonstrate that the City engaged in the analysis required by Doré/Loyola.
Whether the City’s decisions are reasonable
[77] As set out above, the Doré/Loyola analysis first requires that the decision-maker consider the statutory objectives at issue. The decision-maker must then consider how the Charter value at issue will best be protected in view of the statutory objectives. This is meant to be a proportionality analysis. The decision-maker is to balance the severity of the interference with Charter values against the statutory objectives. This is meant to be a “robust” analysis and requires the decision maker to impair the Charter value as reasonably minimally as possible.
[78] In this case, the applicant argues that the decision is not reasonable because the City did not engage in the balancing exercise required by Doré/Loyola. The applicant argues that the City improperly relied on Ad Standards’s rulings without giving any considerations to its right to freedom of expression.
[79] We agree. This applies to the decisions the City made with respect to all three advertisements.
[80] As reviewed above, the City based its decision to require Streetseen to remove Advertisement No. 1 on the ruling made by Ad Standards. In its ruling, Ad Standards found that the advertisement contravened clause 1.0 of the Code because it was misleading. Specifically, Ad Standards found that the advertisement suggests that fetuses benefit from human rights protection whereas the Criminal Code does not recognize fetuses as human beings. Ad Standards concluded that this was misleading advertisement.
[81] In reaching this conclusion, Ad Standards did not undertake the Doré/Loyola analysis. Ad Standards did not identify or assess the City’s legislative objective. More importantly, it had no regard for the applicant’s right to freedom of expression. In particular, it had no regard to the caution expressed in the case law that freedom of expression can include the right to express unpopular views or even untruths. It also had no regard to the applicant’s argument that the advertisement was an expression of opinion rather than an expression of fact. Even in Grande Prairie, where the Court of Appeal of Alberta reviewed the factors that may be relevant to the Doré/Loyola balancing exercise, the Court stated that “care must be taken” when considering issue of accuracy:
One relevant factor in the Doré analysis would be whether the advertisement is inaccurate or misleading. Care must be taken in applying these criteria, because mere differences of opinion, or differences on the moral or social implications of various facts, do not amount to “inaccuracy”: Keegstra at p. 766. As Zundel noted at p. 753 the right to free expression: “. . . serves to preclude the majority’s perception of ‘truth’ or ‘public interest’ from smothering the minority’s perception”. The core of the right to free expression is to allow citizens to have different views about different facts. Any argument about inaccuracy must therefore be based on objectively verifiable facts, not opinions about those facts.
[82] This does not mean that accuracy is irrelevant. In fact, in some cases, for example commercial speech, inaccuracy might be sufficient. However, where, as here, we are dealing with a form of political speech, concerns over inaccuracy cannot be the end of the analysis for rejecting an advertisement. The concerns over inaccuracy must be weighed against the applicant’s right to freedom of expression. This would include consideration of whether the statement is an expression of opinion or fact.
[83] The rulings made by Ad Standards in relation to Advertisements 2 and 3 suffer from similar defects. In those cases, Ad Standards also found that the advertisements were inaccurate and they were therefore contrary to Clause 1.0 of the Code. In addition, Ad Standards found that the advertisements were contrary to Clause 14.0 of the Code because they were demeaning to women who had obtained or were considering obtaining an abortion. Both of these considerations are relevant. The concern over the impact on women is especially relevant because it engages concerns over other Charter protected values such as the equality of women. However, Ad Standards’ analysis did not then weigh these concerns against the applicant’s right to freedom of expression and undertake the necessary weighing exercise.
[84] We are not faulting Ad Standards for failing to embark on this exercise. Rather, the point is that the City cannot simply rely on a ruling by Ad Standards that does not perform the necessary analysis.
[85] Therefore, to the extent that the City wholly relied on Ad Standards’s rulings and Ad Standards failed to engage in the necessary Doré/Loyola analysis, the City’s decisions to remove the advertisements are unreasonable.
[86] As mentioned above, even if we had accepted that the rationale for the decisions provided in the City’s affidavit evidence was properly before the Court, we would still have found the decisions unreasonable. As reviewed above, in her affidavit, the City’s affiant justifies her decision to remove Advertisement No. 1 on the basis that it violates the requirement in the City’s Policy that advertisements be accurate; she states that the City “must insist that messaging be scrupulously honest and fair”. This reasoning suffers from the same flaws as Ad Standards’s reasoning in its ruling on Advertisement No. 1. It fails to consider and weigh the concerns over accuracy against the applicant’s rights to freedom of expression.
[87] Similarly, the affiant’s assessment of Advertisements No. 2 and 3 relies on concerns over accuracy and the impact on women’s equality without weighing the applicant’s right to freedom of expression. While the affiant states that she considered the applicant’s right to freedom of expression, this is a statement made without substantive content. As mentioned above, this is similar to a defect in the municipality’s reasons identified by the Alberta Court of Queen’s Bench in Lethbridge. As held by the Supreme Court of Canada in Loyola, the decision-maker’s analysis must be “robust” and must have regard to whether the applicant’s right to freedom of expression is affected as minimally as reasonably possible. In our view, simply acknowledging or mentioning the applicant’s Charter rights is not sufficient.
[88] The City argues that its Policy and the Code provide the necessary Doré/Loyola balancing. As long as the City assesses whether an advertisement complies with the Policy and the Code, it has fulfilled its obligation to respect the applicant’s right to freedom of expression. In our view, the problem with this argument is illustrated by what happened here. There is no doubt that the Policy and Code are a good starting point. Advertising standards that aim to ensure that advertisements are accurate and do not demean people based on gender or other characteristics are important, especially when dealing with advertisements that will be viewed broadly on public transportation. However, given the requirements of the Doré/Loyola analysis, reliance on a ruling by Ad Standards or a finding that an advertisement appears to be contrary to the Policy is not sufficient. The City must go one step further and engage in the requisite balancing of interests and rights.
[89] The City also appears to argue that the applicant is the author of its own misfortune. It argues that the applicant could have participated in the appeal process established by Ad Standards. However, as reviewed above, Ad Standards is not required to perform the Doré/Loyola. Therefore, this is not what the courts would describe as an adequate alternative remedy and engaging in Ad Standards’s appeal process should therefore not be a prerequisite to an application for judicial review.
[90] The City takes issue with several questions the applicant’s affiant refused to answer on cross-examination. For example, the affiant did not answer questions about her views on the accuracy of the advertisements or whether they demeaned women. The affiant also did not answer questions about the applicant’s target audience and whether the applicant considered that City buses were an important medium for its messages. In our view, the applicant’s refusal to answer these questions bears no relevance to the central issue on the application, namely whether the City undertook the analysis it was required to undertake.
[91] The intervenor Abortion Rights Coalition of Canada presented arguments in support of the City’s decisions, emphasizing the importance of protecting abortion rights and the deleterious effects of the applicant’s advertisements on the rights of women and people capable of pregnancy. There is obviously merit to these arguments. However, as reviewed above, it is not the court’s role at this stage to weigh in on an evaluation of the advertisements. Rather, it is first for the City to weigh the issues identified by the Coalition against the applicant’s right to freedom of expression.
[92] The intervenor Christian Heritage Party argues that there are countervailing opinions on the issue of when life begins and that the applicant should be allowed to express this opinion. Similarly, the intervenor Association for Reformed Political Action Canada argues that the right to freedom of expression includes the right to express and debate unpopular opinions. Again, these are legitimate points of view relevant to the City’s decision-making process when conducting the Doré/Loyola analysis.
[93] We have sympathy for the City’s argument that these are challenging decisions, and reliance on Ad Standards makes the decisions more predictable and less likely to be dictated by the whims or inclinations of individual City employees. However, as reviewed above, once the City chooses to sell advertisement on public buses and other municipal property, it must comply with the law. This requires ensuring that it has the personnel and resources available to make the necessary decisions.
[94] Accordingly, we find that the City’s decisions to remove Advertisements No. 1 to 3 from its public buses were unreasonable because the City failed to conduct the Doré/Loyola analysis.
Whether the City improperly fettered its discretion
[95] Given our conclusion that the City’s decisions were unreasonable, we do not need to address the issue of whether the City improperly fettered its discretion. We only address this issue briefly to make the following observation.
[96] In our view, as discussed above, the City is entitled to obtain and rely on rulings made by Ad Standards in deciding whether to post advertisements. However, the City cannot rely on Ad Standards as the final arbiter of the decisions it must make. This is not so much due to a concern over fettering but rather because the exercise performed by Ad Standards is not the same exercise as the analysis the City is to perform under Doré/Loyola.
[97] If Ad Standards performed such an analysis and the City relied on the analysis without any independent review or consideration, this may or may not give rise to concerns that the City improperly fettered its discretion. However, this is not what happened here and not an issue that needs to be decided in this context.
The appropriate remedy
[98] As in the many cases referred to above where the courts have found that a municipality did not engage in the requisite Doré/Loyola analysis, in our view the appropriate remedy is to remit the matter back to the City to be decided in accordance with these reasons.
[99] As held in Canadian Broadcasting Corporation v. Ferrier, 2019 ONCA 1025, at para. 77, “where a court grants judicial review and quashes a decision, the appropriate remedy is to remit the matter back to the original decision maker to be decided in light of the court’s decision”. One exception to this principle is where remitting the matter back would be pointless because there is only one possible outcome.
[100] As the analysis above makes clear, it is far from a foregone conclusion that the City should be required to post the advertisements at issue on its buses. There are legitimate significant competing considerations and the City should exercise its discretion in weighing those considerations. Accordingly, this is not an appropriate case for a mandamus order.
Conclusion
[101] For the reasons above, the applications for judicial review are granted. The issue of whether the City can reject Advertisements No. 1 to 3 is remitted back to the City to be decided in accordance with the Doré/Loyola analysis and these reasons.
[102] As the successful party on the application, the applicant is entitled to its costs. In our view, $25,000 is a fair and reasonable amount in the circumstances of this case. The City is to pay the applicant $25,000 within 30 days.
M. Edwards R.S.J.
McKelvey J.
Favreau J.
Released: January 26, 2022