CITATION: Association for Reformed Political Action v. City of Hamilton, 2022 ONSC 6691

DIVISIONAL COURT FILE NO.: 833/21

DATE: 20221130

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: The Association for Reformed Political Action (ARPA) Canada and John Boekee, Applicants/ Responding Parties

AND:

The City of Hamilton, Respondent

AND:

Abortion Rights Coalition of Canada, Proposed Intervenor/Moving Party

BEFORE: Nishikawa J.

COUNSEL: John Sikkema, for the Applicants/Responding Parties

Melanie Anderson and Emma Phillips, for the Proposed Intervenor/Moving Party

No one appearing for the Respondent

HEARD at Toronto: November 22, 2022 (by videoconference)

MOTION FOR LEAVE TO INTERVENE ENDORSEMENT

Overview and Background

[1] The Applicants, the Association for Reformed Political Action (ARPA) Canada and John Boekee, commenced an application for judicial review of a decision of the Respondent, the City of Hamilton (the “City”), rejecting an advertisement that the Applicants sought to have displayed on the City’s transit system (the “Decision”).

[2] ARPA is a not for profit, national organization engaged in educating and assisting members of Canada’s Reformed churches and the broader Christian community to participate in public discourse. Mr. Boekee is a member of ARPA Hamilton, which is engaged in pro-life advocacy and other social issues.

[3] The advertisement that ARPA submitted to the City states: “We’re for women’s rights: Hers. Hers. Hers. And Hers.” The word “Hers” appears under three separate photographs of a young woman, a girl, and a younger girl. The words “And Hers.” appears below a sonogram image of a late-term fetus in the womb. The advertisement refers to a website, defendgirls.com. The Applicants submit that the advertisement was aimed at mobilizing support for Bill C-233, which sought to prohibit sex-selective abortion.

[4] The City rejected the advertisement stating that the phrase “And Hers.” would “need to be revised so as not to reflect personhood in relation to” the last image. The Decision referenced the Canadian Code of Advertising Standards, Clause 1 (Accuracy and Clarity), which forms part of the City’s advertising policy, and the Criminal Code.

[5] The proposed intervener, Abortion Rights Coalition of Canada (ARCC), brings this motion for leave to intervene in the application for judicial review. ARCC is a national feminist organization devoted to ensuring abortion rights and access. ARCC was established in 2005 to coordinate the work of local, provincial and regional pro-choice groups. ARCC undertakes activities that include public advocacy and education, research projects, lobbying, and monitoring anti-abortion advertising and messaging. According to ARCC, it is the only national organization that monitors anti-abortion advertising. In this capacity, it receives complaints from members of the public about false, misleading, demeaning, or discriminatory advertisements.

[6] The Applicants oppose ARCC’s motion for leave to intervene for two main reasons: (i) ARCC seeks to raise new issues or to expand the issues on the application; and (ii) ARCC seeks to supplement the City’s reasons for rejecting the advertisement. The Applicants submit that to the extent that ARCC’s proposed submissions are not captured under their first two objections, they would be duplicative of the City’s submissions.

[7] The City does not oppose the motion and made no submissions on it.

[8] For the reasons given below, the motion for leave to intervene is granted.

Analysis

The Test for Leave to Intervene

[9] Rule 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides for intervention as a friend of the court, states as follows:

Any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.

[10] The Court of Appeal has established that when deciding whether to grant leave to intervene as a friend of the court, the following considerations apply:

a. The nature of the case;

b. The issues involved;

c. The likelihood that the proposed intervener will make a useful and distinct contribution not otherwise offered by the parties; and

d. Whether the intervention will cause injustice to the parties or undue delay.

Peel (Regional Municipality) v. Greater Atlantic & Pacific Co. of Canada ltd. (1990), 1990 6886 (ON CA), 74 O.R. (2d) 164 (C.A.).

ARCC’s Proposed Submissions

[11] In its factum in support of the motion, ARCC details the submissions that it proposes to make if granted leave. ARCC’s proposed submissions are summarized, in brief, as follows:

(a) The Decision strikes a reasonable and proportionate balance between the competing Charter rights at stake;

(b) The Decision ought to be read generously and in light of what was before the City, including the Ads Standards advisory opinion regarding the advertisement and the City’s own by-laws and policies;

(c) The Applicants’ advertisement is misleading, legally inaccurate, and coercive in its impact. The advertisement and material on the website create a false and misleading impression that a fetus has the same rights as a living woman or girl and that people who choose abortion are rights deniers or abusers. The advertisement perpetuates false narratives and/or inaccurate and demeaning stereotypes, including that late term abortion is common, that sex selective abortion is practiced frequently in Canada, and that sex selective abortion is practised commonly among South and East Asian immigrant communities.[^1] The advertisement has a chilling effect on people who may wish to access abortion services;

(d) Any infringement on the Applicants’ freedom of expression is minimal. The Applicants’ advertisements are not political advertisements; they do not express an opinion but misrepresent a fringe, extremist view as if it were a factual statement. Advertisements that are misleading do not advance the truth-seeking function underlying the protection of free expression, which ought to be considered in balancing the Applicants’ freedom of expression against the harms caused by misleading advertisements about legal medical procedures that engage ss. 2(a), 7 and 15 Charter rights;

(e) Any infringement on the Applicants’ freedom of expression must be balanced against other Charter-protected rights, namely, the ss. 2(a), 7 and 15 rights of women and people capable of pregnancy. The advertisement risks causing such people to feel targeted, unsafe, marginalized or to feel shamed, bullied and attacked for exercising their fundamental right to control their own bodies because it misleads the public into believing harmful stereotypes that those who choose abortion are violating human rights; and

(f) The City’s decision furthered the City’s own values and objectives and, in turn, safeguarded people’s s. 2(a) right to freedom of conscience and religion; s. 7 right to life, liberty and security of the person, and s. 15 right to equality. A person’s right to make deeply personal decisions about their body is fundamental to their freedom of conscience under s. 2(a) and their right to life, liberty and psychological and physical integrity under s. 7. The ability to access sexual and reproductive health care services, including abortion, free from coercion, stigma and harmful stereotypes is crucial to achieve the promise of substantive equality under s. 15 of the Charter. The advertisement undermines these important Charter protections. The City reasonably balanced the Applicants’ expressive rights and the rights of the public to a safe and inclusive transit system.

Application of the Factors

Nature of the Case/Issues Involved

[12] The nature of the case and issues involved engage the public interest. The Applicants’ application for judicial review raises important issues regarding the appropriate balance to be struck between the Applicants’ freedom of expression and the City’s ability to restrict potentially misleading advertising in public spaces.

Whether the Intervener Will Make a Useful and Distinct Contribution

[13] In Elementary Teachers’ Federation et al v. Her Majesty, 2018 ONSC 6318 (Div. Ct.), this court described what constitutes a useful contribution:

10 A contribution is not useful if it simply repeats issues and arguments put forward by the parties although some overlap may be permitted. (Halpern v. Toronto (City) Clerk (2000), 2000, 2000 29029 (ON SCDC), 51 O.R. (3d) 742 at para. 18 (Div. Ct.).)

11 There must be a real, substantial and identifiable interest in the subject matter, and an important and a distinct perspective to be articulated that is different from that of the parties. A well-recognized group with special expertise and a broadly identifiable membership base may be better able to provide a useful and distinct contribution to the resolution of the matter. Intervention is especially helpful where the interest of the more vulnerable are at stake and the outcome will be beyond the private rights of parties. (Reference re Workers’ Compensation Act 1983 (Nfld), 1989 23 (SCC), [1989] 2 S.C.R. 335, at paras. 11-12.)

12 The Ontario Court of Appeal has recognized the desirability of having “all of the relevant possibilities brought to its attention, including submissions on the impact of its judgment, not only on the parties, but on those not before the court.” This is true even where only certain aspects of the ultimate decision may bear on the rights at issue and where the intervener may bring only a slightly different perspective to be considered. (Childs et al v. Desormeaux, 2003 47870 (ON CA), [2003] O.J. No 3800 (QL), at para 15.)

[19] Therefore, when considering whether the proposed intervener will make a useful contribution, the court focuses on: (i) the proposed intervener and its expertise or interest in the issues at stake, and (ii) the specific contribution the intervener proposes to make.

[14] In my view, given its role in receiving complaints related to anti-abortion advertising and its advocacy and coordination activities, ARCC has both broad-based knowledge and expertise in the issues raised by the application. Similarly, based on its membership, ARCC has a real, substantial and identifiable interest in the issues at stake. ARCC also has an important perspective that is distinct from that of the parties. The City’s submissions on the application will be made from the perspective of a municipal government and neutral decision-maker. ARPA’s submissions will be based on the advocacy interests of its membership and their ability to exercise their freedom of expression. ARCC would be able to provide additional perspectives that would assist the court in understanding the broader potential impact of the court’s decision on those not before the court.

[15] In support of their position that ARCC’s proposed submissions would impermissibly expand the issues before the court on the application, the Applicants take the position that the Decision was narrow and was based only on the City’s finding that the advertisement was inaccurate or misleading in implying that a fetus has personhood. The Applicants submit that ARCC’s proposed submissions are largely based on Clause 14 (Unacceptable Depictions and Portrayals) of the Canadian Code of Advertising Standards which prohibits advertising that is demeaning, discriminatory, or encourages bullying, among other things. The Applicants submit that because the Decision was not based on Clause 14, ARCC cannot make submissions that would justify the Decision on that basis, which would both expand the issues beyond those raised by the parties and impermissibly supplement the City’s reasons.

[16] In their notice of application for judicial review, however, the Applicants plead broad grounds for review and seek far-reaching relief. The Applicants not only take the position that the Decision was unreasonable but that it breached their rights under s. 2(a) of the Charter, which breach cannot be justified under s. 1. The notice of application states, for example, that the “Decision and reasons do not consider the Charter of Rights and Freedoms, specifically the fundamental freedom of thought, belief, opinion, and expression under section 2(b).” Moreover, the Applicants seek relief in the form of mandamus and request that this court require that the City accept their advertisement. The potential issues before the court are therefore broad. A s. 1 analysis would require the court to engage in a balancing exercise that would entail an assessment of other Charter values at stake. Having framed their application for judicial review in the broadest terms, the Applicants cannot now argue that the Decision is so limited that ARCC’s proposed intervention would impermissibly expand the scope of the application.

[17] At the same time, the Applicants’ concern that some of ARCC’s proposed submissions would expand the scope of the issues in the application is not entirely misplaced. Certain of ARCC’s proposed submissions extend beyond the scope of the issues before the court on the application. The proposed submission at paragraph (f) above appears to be a significant departure from the issues raised by the parties on the application. While the Applicants’ framing of the issues could entail a balancing of Charter rights, the Decision itself does not state that it was based on a consideration of ss. 2(a), 7, and 15 of the Charter.

[18] Moreover, the proposed submission at paragraph (c) above refers to the material on the website referred to in the advertisement. Similarly, paragraph (d) refers not only to the advertisement at issue in this application but to ARPA’s advertisements. The Decision, and therefore this application, pertains only to the advertisement considered by the City.

[19] In respect of the Applicants’ further concern, that ARCC seeks to supplement the City’s reasons, in Guelph and Area Right to Life v. Guelph (City), 2022 ONSC 43, this court declined to take into account the Respondent’s after-the-fact justification for its decision, “in the absence of any indicia” that those matters were taken into consideration at the time. In this case, there may be an issue if any party seeks to supplement the City’s reasons for the Decision for the purposes of judicial review.

[20] In my view, where the factors identified above weigh in favour of granting leave, the Applicants’ concerns about the nature and scope of certain of ARCC’s submissions should not preclude leave from being granted. Those concerns can be addressed by terms limiting the length and scope of ARCC’s intervention.

Potential Injustice to the Parties or Undue Delay

[21] The parties have not yet agreed to a timetable for the exchange of material and no hearing date for the application has been set. As a result, ARCC’s intervention would not unduly delay the proceeding.

[22] The Applicants did not identify any prejudice beyond having to respond to new and additional arguments made by ARCC. Provided that ARCC’s submissions are limited, as identified below, ARCC’s proposed intervention ought not cause injustice or prejudice to the Applicants.

Conclusion

[23] Accordingly, I find that ARCC has met the test for leave to intervene as a friend of the court. The motion for leave to intervene is granted.

[24] The following conditions are imposed on ARCC’s intervention, subject to the discretion of the panel hearing the application for judicial review:

(a) ARCC will accept the record as prepared by the parties and not add to it, adduce further evidence or raise any new issues beyond those raised by the parties;

(b) ARCC will make all reasonable efforts to avoid duplicating the City’s submissions;

(c) ARCC will serve a factum not exceeding 15 double-spaced pages;

(d) The Applicants may file a reply factum, not to exceed 15 double-spaced pages, to respond to the issues raised in ARCC’s factum;

(e) ARCC will be permitted to make submissions not exceeding 20 minutes at the hearing of the appeal; and

(f) Unless the panel permits otherwise, ARCC will not seek costs.

[25] The parties are to confer to agree to a schedule for the delivery of material on the application and to submit the agreed-upon schedule by email to the Divisional Court.

[26] Pursuant to the agreement between the parties, there will be no costs of this motion.

“Nishikawa J.”

Date: November 30, 2022

[^1]: Two of the four photographs appear to be of a young woman or girl of East or South Asian origin.