Association for Reformed Political Action Canada v. Hamilton (City of), 2023 ONSC 6443
CITATION: Association for Reformed Political Action Canada v. Hamilton (City of), 2023 ONSC 6443
DIVISIONAL COURT FILE NO.: 23-180-JR DATE: 20231116
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Lococo, Emery and Schabas JJ.
BETWEEN:
THE ASSOCIATION FOR REFORMED POLITICAL ACTION (ARPA) CANADA, and JOHN BOEKEE
Applicants
– and –
CITY OF HAMILTON
Respondent
John Sikkema and Tabitha Ewert, for the Applicants
Grant Brailsford and Kaush Parameswaran, for the Respondent
Emma Phillips and Mary-Elizabeth Dill, for the Intervenor, Abortion Rights Coalition of Canada
HEARD at Hamilton: November 2, 2023
REASONS FOR JUDGMENT
SCHABAS J.
[1] In light of the Respondent City’s concession that it did not provide adequate reasons at the hearing of this matter on November 2, 2023, the Court granted the application for judicial review, quashed the decision of the City, and remitted the matter back for proper consideration by the City. The Court indicated that its reasons would follow. These are those reasons.
Background
[2] The Applicants sought judicial review of the City of Hamilton’s decision not to accept an advertisement that they wished to have posted on City transit vehicles. The proposed advertisement (the “Ad”), submitted in March 2021, was a banner which stated: “We're for women's rights”. Below the banner it stated: “Defendgirls.com”. The Ad had four photographs, which were captioned, respectively: Hers. Hers. Hers. And Hers. The four photographs were of: (a) a smiling woman in her twenties; (b) a smiling girl around 11 years old; (c) a smiling girl around 6 years old; and (d) an ultrasound scan of a fetus in a pregnant woman.
[3] On May 27, 2021, the Applicants were informed that the City had reviewed the Ad and that “in order for it to proceed, in keeping with the Canadian Code of Advertising Standards, Clause 1 (Accuracy and Clarity) and the Criminal Code of Canada”, the words “And Hers” below the picture of the ultrasound scan “would need to be revised so as to not reflect personhood in relation to the image.” The City recommended that it say “All Rights” or other similar wording.
[4] A few days later, on June 3, 2021, the City repeated its position to the Applicants and invited them to contact City staff to discuss how the Ad might be altered.
[5] On July 23, 2021, the Applicants wrote an email to the City stating that they did not understand the issue regarding “accuracy” and asked for an explanation of the “legal problem.” The Applicants also asked if the decision not to accept the Ad was final.
[6] On September 8, 2021, the City replied in an email saying the Ad had again been reviewed and rejected for the same reasons. The City again stated that the phrase “And Hers” “would need to be revised so as to not reflect personhood in relation to the image” of the fetus. The City again recommended a change in wording to “‘All Rights’ or other similar wording.” The City also referred to an Ad Standards Council decision which was available on the Council's website dealing with a similar issue, which found an advertisement to be misleading in light of Clause 1 of the Canadian Code of Advertising Standards and the Criminal Code, R.S.C. 1985, c. C-46.
This Application
[7] The Applicants did not pursue the matter further with the City but instead commenced this application for judicial review. In their Notice of Application, the Applicants submitted, among other things, that the reasons provided for the City’s decision were unreasonable and that the decision violated s. 2(b) of the Canadian Charter of Rights and Freedoms[^1], which protects freedom of expression. Affidavits were exchanged, including evidence from the City purporting to explain its decision, cross-examinations were conducted, and factums filed.
The City’s Concession and the Appropriate Remedy
[8] About a week prior to the case being heard, the City conceded that the reasons it provided for rejecting the Ad made no reference to the balancing of the Applicants’ right to freedom of expression against the City's statutory objectives, as required by the Supreme Court of Canada’s decisions in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 ("Doré"), and Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613 ("Loyola"). It was only in its after-the-fact affidavit that the City asserted that it had performed the balancing of interests.
[9] The City acknowledged, as stated by this Court in Guelph and Area Right to Life v. City of Guelph, 2022 ONSC 43, 160 O.R. (3d) 574 (Div. Ct.), at para. 74, that "... 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.”
[10] The City submitted that just as this Court in Guelph declined to consider what may have been in the mind of the decision maker but was not articulated, the Court must decline to consider what the City may have considered but did not communicate. As its reasons were inadequate, the City submitted that the appropriate course is to remit the matter back to perform a robust Dore/Loyola analysis and to prepare the required reasons . As the City noted, the result of a proper, robust analysis is not a foregone conclusion.
[11] The Applicants argued that the Court should nevertheless have heard argument on the application and considered whether to order the City to accept the Ad. Counsel submitted, essentially, that the Charter was not engaged and that the judicial review was limited to the reasonableness of the City’s application of the Canadian Code of Advertising Standards. In short, they sought to have this Court weigh in on the controversial issue of whether a fetus is a person and, depending on the outcome, have this Court order the Ad be posted.
[12] The problem with the Applicants’ position is that it is contrary to what is stated in their application, which is that the City failed to conduct a robust Dore/Loyola analysis, and that the decision infringed their Charter rights. They now seek to narrow the scope of the case, in order to avoid consideration of the City’s objectives in providing a public transit system. As this Court noted at para. 75 of Guelph, the challenge for municipalities to consider whether to post contentious advertisements “require[s] balancing competing interests and nuanced principles.”
[13] As in Guelph, it is not for the Court to engage in reasoning that ought to have been undertaken by the decision-maker. The Court wrote in Guelph, at para. 91, “... 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.”
[14] This is consistent with the long-standing general practice on judicial review of remitting matters back to the original decision maker rather than having courts provide reasons on the issue. As the Ontario Court of Appeal observed in Canadian Broadcasting Corporation v. Ferrier, 2019 ONCA 1025, 148 O.R. (3d) 705, at para. 77, “[o]rdinarily, where a court grants judicial review and quashes a decision, the appropriate remedy is to remit the matter to the decision maker for reconsideration in the light of the court's decision.” Such an approach is consistent with the principle of deference to administrative decision makers: Delta Air Lines Inc. v. Lukács, 2018 SCC 2, [2018] 1 S.C.R, 6, at paras. 29-31. This is not an exceptional case in which reconsideration can only lead to one outcome, such that remitting the matter back would be pointless: 2274659 Ontario Inc. v. Canada Chrome Corp., 2014 ONSC 4446, 324 O.A.C. 116 (Div. Ct.), at paras. 98-111, aff’d 2016 ONCA 145, 394 D.L.R (4th) 471, at paras. 69-74, leave to appeal refused, [2016] S.C.C.A. No. 172.
[15] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 (“Vavilov”), at para. 80, the Supreme Court observed that “[t]he process of drafting reasons … necessarily encourages administrative decision makers to more carefully examine their own thinking and to better articulate their analysis in the process.” The discipline of providing reasons will require the City to carefully consider and articulate its objectives and concerns regarding the nature of permitted advertising on its public transit, and to balance those objectives with the important constitutional right to freedom of expression. If the City again rejects the Ad and the Applicants again seek judicial review, the Court will then have the benefit of the City’s reasons and can subject them to appropriate scrutiny.
[16] In reaching this result, Irecognize the concern that the City is to some extent being given, as the Applicants put it, a “second kick at the can.” However, absent a suggestion that the City, or any other decision maker, deliberately avoided providing reasons, the benefit of obtaining reasons before a Court engages in judicial review outweighs any unfairness to an applicant. In this case, there is no evidence that the City failed to provide reasons in order to delay or prevent the Ad from being posted. Further, in this case the decision was not that of a quasi-judicial administrative tribunal, from whom reasons would be expected, but a decision by City staff not to enter into a contract to post an advertisement unless a change was made to it. Rather than negotiating a change in wording, the Applicants went to Court. Finally, the City’s decision was made prior to the release of this Court’s decision in Guelph, which held that robust reasons are necessary in such circumstances. Accordingly, I see no unfairness in remitting the matter back to the City.
Costs
[17] The Applicants submit that they should receive costs on a substantial indemnity basis, relying on the City’s failure to provide reasons and the ensuing delay caused by the litigation. This is not a basis for an elevated award of costs. Such costs are usually rooted in the conduct of the litigation, not the underlying facts of the case. Here, there is no misconduct by the City that would justify costs on a substantial indemnity basis.
[18] The City, on the other hand, submits that there should be no costs. In January 2023 the City offered to settle the case on the same basis as has been ordered, that is, to remit the matter to the City to conduct a fulsome and robust balancing of interests in accordance with a Dore/Loyola analysis. The City also offered to pay the Applicants’ costs to date on a partial indemnity basis. The offer was not accepted by the Applicants who said they wished to litigate the Charter issue – something they later sought to avoid at the hearing. As the offer was made at about the half-way point of the litigation, the City submits that the appropriate order is for the parties to bear their own costs.
[19] In my view, the City should pay some costs to the Applicants. Despite the City’s offer, it did not file its concession factum until approximately one week before the hearing. It could have conceded this point much earlier, as it recognized the insufficiency of its reasons some time ago. This diminishes the impact of the City’s offer to settle.
[20] The Applicants’ partial indemnity claim is for approximately $40,000. I observe that in Guelph the municipality was ordered to pay costs of $25,000, which is therefore an amount that the City could reasonably have expected to pay. Taking into account the impact of the offer to settle, I direct that the City pay costs to the Applicants of $20,000, inclusive of tax and disbursements.
Conclusion
[21] The application is granted and the matter is remitted back to the City. The Respondent shall pay the Applicants’ costs fixed in the amount of $20,000, payable within 30 days.
Paul B. Schabas J.
I agree
Lococo J.
I agree
Emery J.
Date: November 16, 2023
CITATION: Association for Reformed Political Action Canada v. Hamilton (City of), 2023 ONSC 6443
DIVISIONAL COURT FILE NO.: 23-180-JR DATE: 20231116
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
THE ASSOCIATION FOR REFORMED POLITICAL ACTION (ARPA) CANADA, and JOHN BOEKEE
Applicants
– and –
CITY OF HAMILTON
Respondent
REASONS FOR JUDGMENT
Paul B. Schabas J.
Date: November 16, 2023
[^1]: Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.