Citation: 2024 ONSC 6181 Divisional Court File No.: 212/23 Date: 2024-11-12
Ontario Superior Court of Justice Divisional Court
Before: Backhouse, Trimble & Mew JJ.
Between:
Christian Heritage Party of Canada, CHP Hamilton-Mountain Electoral District Association Applicants
– and –
City of Hamilton Respondent
– and –
Egale Canada Intervenor
Counsel: Garifalia Milousis, for the Applicant Kirk Boggs & Stuart Zacharias, for the Respondent Mary-Elizabeth Dill, for the Intervenor
Heard at Hamilton by videoconference: 28 October 2024
J. K. TRIMBLE J.
Reasons for Judgment
Nature of Proceeding
[1] The Applicants, the Christian Heritage Party of Canada (“CHP”), and one of its local riding associations, the CHP Hamilton-Mountain Electoral District Association bring this application for judicial review of the City of Hamilton’s 6 July 2023 decision to reject CHP’s proposed billboard bus advertisement. The Applicants seek a wide range of remedies, including an order quashing the decision, a declaration that it is unreasonable, a declaration that the decision violates the Applicants’ section 2(b) Charter rights, and an order of mandamus that the City run its advertisement on its busses and bus shelters.
[2] For the reasons set out below, the application should be dismissed.
The Parties
[3] CHP is a registered political party under the Canada Elections Act, S.C. 2000 c. 9. CHP submits that it is founded on Judeo-Christian principles and that its platform is consistent with Christian teaching and values. CHP Hamilton-Mountain is a riding association for CHP Canada, also registered with Elections Canada.
[4] The City of Hamilton is a municipal corporation incorporated pursuant to the Municipal Act, 2001, S.O. 2001, c. 25. As part of its responsibilities, the City is responsible for its municipal public transit system and for advertising space on it.
[5] The Intervenor, Egale Canada, is an advocate for 2SLGBTQI people and issues.
Facts
[6] On January 28, 2023, James Enos, President of the Ontario branch of the CHP, emailed OUTFRONT Media, the City’s third-party contractor for advertising on the City’s public transit system (the Hamilton Street Railway), seeking approval of an attached billboard Advertisement that it wanted to run in April or May of that year.
[7] CHP’s Advertisement displayed the words “Woman: An Adult Female. Bringing Respect for Life and Truth to Canadian Politics[.] The Christian Heritage Party of Canada”. The Advertisement showed the CHP’s logo, its toll-free number, and its web address. Between the word “Woman” and the balance of the words, there appeared a photo of a young woman, with her hands on her hips, staring into the camera, smiling. CHP wanted to run the Advertisement to communicate their religious and political position on a current policy issue.
[8] The intention behind the Advertisement was laid out in CHP’s platform regarding gender issues set out on the website that the Advertisement linked to, as follows:
- There are two biological genders: male and female
- Biological gender is encoded in the chromosomes and cannot be changed by surgery or chemicals
- Children must be protected from the LGBTQ “gender agenda” which ignores biological reality
[9] On February 1, 2023, OUTFRONT Media indicated that it would “get back to [CHP] on the artwork shortly.” It quoted the rate for the Advertisement. Two hours later, OUTFRONT emailed saying, “The artwork has been declined as it does not conform to the Advertisement Standards Code. Sorry, afraid we can’t run that.”
[10] On February 8, 2023, CHP requested reasons for the above decision by responding to the email saying, “This is political advertising. How does the Advertisement Standards Code govern political speech? Doesn’t the Charter of Rights protect CHP’s right to make political advertisement without interference from government? Also, which part of the Advertisement Standards Code does the Advertisement violate in your opinion”.
[11] On February 11, 2023, OUTFRONT responded by saying, “I understand your frustration, but I have put the message through the chain of approval, and it was declined.”
[12] CHP requested further clarifications on the February 11, 2023, response on February 12 and 21, 2023. In his February 12 email, Mr. Enos said:
Thanks for your note, but the reason I asked for more detail is because we really want to get the Advertisement up and running. If there’s something specific in the Advertisement that violates the Code, we would like to understand what that is. All you’ve told me is that it’s declined, but you’ve not told me why or under what authority. I appreciate that this isn’t your call, but can you provide some basis for the rejection, so we know.
[13] These requests were not answered. Counsel for the CHP then wrote to the City’s Manager of Communication on March 24, 2023, requesting that a legal basis for the Initial Decision be provided. In particular, he asked how the Advertisement failed to conform to the Advertisement Standards Code.
[14] Matthew Grant, the City’s Director of Communications and Strategic Initiatives, responded by email on April 12, 2023, stating, “Thank you for bringing this issue to our attention… the decision referenced was not made by the City of Hamilton but rather by a vendor that sells advertising space on the City’s behalf.” Mr. Grant indicated that the City would review the decision and respond after its review.
[15] On April 29, 2023, CHP’s Counsel followed up with Mr. Grant, who responded on May 1, 2023, saying that he would respond in a few days.
[16] On May 15, 2023, CHP’s Counsel again followed up with Mr. Grant. Mr. Grant replied on May 17, 2023, and stated the following:
Our initial review suggests that the advertisement could potentially impact the City’s ability to provide a safe and welcoming transit system for all and other statutory objectives… The City wishes to ensure that it does not approve for publishing an advertisement that might cause unforeseen and unintended harm (and we expect that CHP shares that wish) …we also understand the importance of CHP’s right to freedom of expression… The nature of the proposed advertisement is unusual, in our experience, and demands that we exercise special care in our assessment.
[17] CHP’s Counsel responded on May 29, 2023, requesting further information regarding the claim that the advertisement was “unusual” and “unsafe”. Mr. Grant, replying on May 31, 2023, wrote:
…[W]e are considering how this advertisement may be viewed by some as discriminatory in nature to members of the trans community and whether that might inspire hateful conduct in the community. We are mindful of incidents in which transgender people have been targeted, including the incident last year on an HSR bus in which an assault charge was laid. Among the academic studies that I referred to in my May 9th email, this paper [hyperlinked] found a correlation between negative media message and depression (at a clinical level), anxiety and global stress among transgender people... we are also aware of CHP’s very important right to freedom of expression.
Assuming, for the moment, that this Advertisement will be approved, and to expedite the next part of the process, perhaps you can give me a sense of the locations you would like to place the advertisement and your advertising budget for this purchase and I can have may marketing manager reach out to our advertising firm to make them aware.
I anticipate being able to reach out to you in the coming days with next steps.
[18] On July 6, 2023, the City provided CHP’s Counsel with the decision, advising that the Advertisement was declined because it jeopardized the City’s ability to provide a safe and welcoming transit system.
[19] The City’s reasons for its decision are four and a half pages long. They acknowledge both the implications of the Advertisement and the harm it could generate for the transgender community as well as CHP’s right to freedom of expression. In coming to its decision, the reasons provide under the heading “Balancing the Freedom of Expression against the City’s Statutory Objective”, the City’s review of academic literature, consultation with the Chair of the City’s LGBTQ Committee, and Hamilton Police Services’ information on increasing incidents of hate or bias directed against transgender peoples. The reasons ended by saying,
In coming to this decision, we have been faced with a dichotomy: either accept the advertisement for publication or reject it. There does not appear to be a middle ground. However, if you believe there is a way to minimize the infringement of CHP’s right to freedom of expression short of accepting the advertisement as submitted, we welcome your suggestions.
[20] CHP filed the Notice of Application on August 3, 2023, seeking “a judicial review of the City’s Decision of February 1 and retroactive reasons of July 6, 2023.” The hearing date (October 28, 2024) was scheduled by consent on April 29, 2024.
Issues
[21] The issues on this Application for Judicial Review are:
a. Was there procedural fairness in the City’s process?
b. Was the decision reasonable under Vavilov and Doré?
c. Was the City Biased?
d. What is the appropriate remedy?
Jurisdiction
[22] The Divisional Court’s jurisdiction for judicial review of the City’s decision to not carry CHP’s billboards in its transit system is found in ss. 2 and 6 (1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
Standard of Review
[23] The parties agree that the standard of review of reasonableness applies to the City’s decision.
[24] The parties also agree that the standard of review for questions of procedural fairness is that set out by applying the five factors set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193.
Analysis
A Preliminary Issue
[25] It appears that CHP treats OUTFRONT’s decision to not run CHP’s Ad, and the City’s decision to not run the Ad, as separate decisions to be reviewed. In his February 12, 2023, email to OUTFRONT, Mr. Enos of CHP said to OUTFRONT, “I know that this [decision] is not your call….”.
[26] Accordingly, as CHP acknowledges that the decision was the City’s to make and only seeks judicial review of the City’s decision, CHP’s submissions about OUTFRONT’s decision will not be further considered.
Issue 1: Was there Procedural Fairness?
The Applicant’s Position
[27] CHP submit that the City’s process was procedurally unfair because it violated 4 of the 5 Baker[^1] factors as follows:
a. Baker #1 – the Decision was made in a hasty and opaque manner;
b. Baker #3 – the issue before the City and now the Court was of immense importance to CHP, namely an infringement of their Charter right to freedom of expression, especially political expression;
c. Baker #4 – CHP has a legitimate expectation that the Advertisement would be approved based on previous judicial involvement; and
d. Baker #5 – the City adopted a “dog whistle” approach and rejected the Advertisement because of alleged concerns about subtle cues and subjective interpretations.
[28] In Baker, at para. 22, the majority described the purpose of procedural fairness as follows:
Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, […] underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.
[29] CHP argues that the City’s July 6, 2023 decision drew on data that only became available after OUTFRONT declined to run the Advertisement, CHP was not permitted to put forward its views regarding the decision to run the Advertisement, the City made up its mind before hearing from CHP or considering any other factors, the City made no recommendations as to alternative wording for the Advertisement, the City was biased, and the City censored the CHP.
The Respondent’s Position
[30] The City argues that the decision was careful and thoughtful, that the City received input from CHP, and that when it asked for more input, CHP was silent.
The Law on Procedural Fairness
[31] In Baker, at para. 20 (per L’Heureux-Dubé J, for the majority), the Supreme Court of Canada said, “The fact that a decision is administrative and affects ‘the rights, privileges or interests of an individual’ is sufficient to trigger the application of the duty of fairness.” In considering whether the procedure was fair, the Court at paras. 23 to 28 listed five criteria to consider:
a. the nature of the decision to be made and process followed in making the decision;
b. the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
c. the importance of the decision to the individuals affected;
d. the legitimate expectations of the person(s) affected by the decision; and
e. the agency or administrator's choice of procedure.
The Law Applied
[32] Baker Factor #1 - The decision that CHP asked the City to make was a standard administrative decision: whether to run an ad on its public transit system. In the circumstances, that decision involved weighing the interests of both the CHP and of the transgender and gender non-conforming people. No specific process was outlined in making this decision.
[33] Baker Factor #2 - The nature of the statutory regime is the City’s obligation to run a public transit system and to have advertising on that system that meets all legal requirements (including the requirements of the Charter, the Criminal Code, the Canada Human Rights Act, the Ontario Human Rights Code) and all policies and procedures that apply (including the Canadian Code of Advertising Standards, the City’s Equity and Inclusion Policy, and the City’s Protocol for Gender Identity and Gender Expression; Transgender and Gender Non-Conforming Persons).
[34] Baker Factor #3 & #4 - The importance of the issues arising from the proposed Advertisement was high both for CHP but also for transgender and gender non-conforming people, all of which were legitimate interests: CHP’s interest in political expression, and the City’s and transgender/gender non-conforming people’s interest in having a safe, respectful, and inclusive environment for all community members who use public services such as public transit, including those who are not cis-gender.
[35] Baker Factor #5 - The procedure that the City selected was to correspond with CHP and obtain its concerns and views. The CHP’s position that the Charter protected its rights to make a political ad without government interference and that the proposed Advertisement did not violate the Advertising Standards Code was expressed in its various emails. The City responded to the CHP’s request to explain its statement that the proposed Advertisement was “unusual” and “unsafe.” The CHP does not identify what other views it was prevented from expressing or what the City should have but failed to consider in reaching its decision.
[36] The City then consulted with other interested people including legal counsel and the Chair of the City’s LGBTQ Advisory Committee to obtain the views of the LGTBQ community. It also considered recent literature about the effects of media related messages on transgender people and consulted with the Hamilton Police Force about incidents of hate or violence with respect to transgender people.
[37] Considering the five Baker factors, the process that the City applied in reaching its decision is fair. The decision is not an adjudicative one. Rather, the decision is a relatively low-level administrative decision, albeit one that involved weighing significant interests. The process was proportional and reasonable. CHP was consulted through its email discussions with OUTFRONT and the City. In its decision, the City invited feedback from CHP.
Issue 2: Was the Decision Reasonable according to Vavilov[^2] and Doré[^3]?
The Applicant’s Position
[38] CHP submits that the decision to not run its billboard Advertisement was unreasonable for the following reasons:
a. There was no reasonable link between the City’s statutory objective on the one hand, and to the City’s Advertising Policy, on the other. The City’s Policy for Commercial Advertising and Sponsorship (“Advertising Policy”) deals with commercial advertising and sponsorships on City-owned or City -controlled assets and public property, at City events, and in City publications. The stated objective of the Advertising Policy is to ensure that advertising and sponsorship abides by all applicable laws and City policies and does not adversely affect public safety or the City’s image or interests. The Advertising Policy requires that all advertising and sponsorships comply with the Canadian Code of Advertising Standards, which is expressly inapplicable to political advertising. The City’s Equity and Inclusion Policy and its Protocol for Gender Identity and Gender Expression; Transgender and Gender Non-Conforming Persons on which it relied in its July 6, 2023, decision did not form part of the Advertising Policy.
b. The City’s July 6, 2023, written reasons do not demonstrate internal coherence and a rational chain of analysis. Rather, the reasons are used to justify the City’s imposition of its policy choices to censor CHP’s political, Charter protected, right of free speech, especially political speech.
c. Further, the City cited as a reason for its rejecting the Advertisement the 2022 Hate/Bias Statistical Report. This report was only released after OUTFRONT’s decision, making the City’s reasons nothing more than retroactive justification of OUTFRONT’s decision.
The Respondent’s Position
[39] The City submits that its decision is reasonable because:
a. The Advertising Policy, as written, provided that any advertising cannot contradict or violate the CCAS, any other City policy, or any applicable law or by-law. As such, all ads must meet the City’s objective to provide a “safe and effective transit system” as set out in City Advertisement Policy, the City’s Protocol, and the City’s EI Policy.
b. The City is a creature of statute and must also abide by a wide array of statutes and policies, including Federal and Provincial Human Rights Codes and legislation.
c. In accordance with Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component, 2009 SCC 31, [2009] 2 SCR 295, the administration of public transportation has been found to include the management of advertisements posted on the side of buses.
d. The City’s statutory objective, as informed by its policies, the Protocol, and Federal and Provincial Human Rights Codes and legislation, is to provide a safe environment for transgender and non-gender conforming users of the public transit system.
e. The City appropriately thought that CHP’s Advertisement would send a clear message to transgender and non-gender conforming individuals that they were not welcome and/or safe on the transit system and consulted widely before making its decision. Its decision was within the range of reasonable decisions that could have been made.
[40] Further, the City submits that its decision represents a careful, thoughtful analysis. It balances all relevant factors as per the Doré/Loyola[^4] framework (i.e., considering both the City’s statutory/policy objectives and CHP’s right to express a contrary opinion or their right to freedom of expression). The CHP’s Advertisement, the City submits, will jeopardize the City’s ability to provide a “safe and welcoming transit system.” Rejection of the Advertisement will have only a minor impact CHP’s rights.
[41] The City asked CHP if it had alternate wording it could propose to the Advertisement. The CHP never responded.
[42] The City submitted that its July 6, 2023, decision falls within a range of reasonable outcomes and demonstrates the rationale for the decision. Further, it demonstrates a balancing of the important rights and interests of the CHP, with the City’s rights and interests, and those of the transgender and non-gender conforming persons.
[43] In its submissions about the reasonableness of the decision, the City made extensive submissions, supported by the Intervenor, about the legal and social status of and challenges faced by transgender and non-gender conforming individuals.
The Law re Reasonableness
[44] In Peterson v College of Psychologists of Ontario, 2023 ONSC 4685, 167 O.R. (3d) 11, this Court described the test for reasonableness from Vavilov and Dore as follows:
Doré and Vavilov – the legal framework
[30] In Doré, the Supreme Court addressed the question of “how to protect Charter guarantees and the values they reflect in the context of adjudicated administrative decisions.” (para. 3.) As the Court elaborated in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293, at para. 57, the Doré framework is "concerned with ensuring that Charter protections are upheld to the fullest extent possible given the statutory objectives within a particular administrative context."
[31] This requires an administrative decision-maker, such as the ICRC, to proportionately balance Charter rights and values and its statutory objectives. This is a highly contextual inquiry. A decision-maker must first consider the statutory objectives it is seeking to uphold, and then, secondly, “ask how the Charter value at issue will best be protected in view of the statutory objectives.” This requires conducting a proportionality exercise, balancing “the severity of the interference of the Charter protection with the statutory objectives.” However, as with the proportionality test under s. 1 of the Charter, which will be met if the measure falls within a range of reasonable alternatives, “in the context of a review of an administrative decision for reasonableness, … decision-makers are entitled to a measure of deference so long as the decision…‘falls within a range of possible, acceptable outcomes’.” (Doré at para. 56)
[32] The Supreme Court elaborated on the Doré framework in Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613 ("Loyola"), and Trinity Western, observing that the Doré approach is not to be a “watered-down version of proportionality”, but is to be “robust.” On an application for judicial review, therefore, the role of the Court is to ensure that the administrative decision-maker “proportionately” balanced the impact on Charter rights and the statutory objectives which “gives effect, as fully as possible to the Charter protections at stake given the particular statutory mandate” (Loyola, at para. 39).” As the Court stated in Trinity Western at para. 80:
Put another way, the Charter protection must be “affected as little as reasonably possible” in light of the applicable statutory objectives (Loyola, at para. 40). When a decision engages the Charter, reasonableness and proportionality become synonymous. Simply put, a decision that has a disproportionate impact on Charter rights is not reasonable.
[33] However, it is also clear that the Doré approach still requires deference. A reviewing court need not agree with the outcome, as that would impose a standard of correctness; nor must a decision-maker “choose the option that limits the Charter protection least”; rather, the question is “always whether the decision falls within a range of reasonable outcomes.” (Trinity Western, at para. 81). As Abella J. put it at para. 58 of Doré: “If, 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.”
[34] Vavilov does not change the standard of review which remains, clearly, a test of reasonableness, showing deference to, and respect for, decision-makers and their specialized expertise. Rather, Vavilov focuses the reviewing court on “the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome.” As the Court continued at para. 83:
The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem.
[35] A reasonable decision, we are told in Vavilov at para. 85, “is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker.” However, reasons “must not be assessed against a standard of perfection”, they need not include all arguments, nor should they “always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge.” As the Court put it, “‘Administrative justice’ will not always look like ‘judicial justice’ and reviewing courts must remain acutely aware of that fact.” (Vavilov, at paras. 91 -92)
The Law Applied
[45] I turn first to the Doré analysis and find that the City applied the Doré test appropriately.
[46] The inquiry into whether the City proportionately balanced Charter rights and values with its statutory objectives as found in the City’s Equity and Inclusion policy and its Protocol for Gender Identity and Gender Expression; Transgender and Non-Conforming Persons is a highly contextual inquiry.
[47] In its 6 July 2023 decision, the City balanced its statutory interest (in providing a public transit system that was safe and welcoming for all people) against CHP’s Charter protected right to freedom of speech, especially political speech. It consulted with the CHP through emails and determined what the CHP’s concerns were. It then consulted with the Chair of its LGTBQ Advisory Committee, available literature on the effect of hate speech and actions on the LGTBQ community, and the police about such activity in the City of Hamilton. In doing so, the City considered how the CHP’s Charter right of freedom of speech could be protected given the City’s policy object to provide a safe, respectful, and inclusive environment for all community members who use the City’s service, including public transit. The City’s decision is reasoned, fair and balanced with respect to the CHP’s rights and the City’s statutory obligations and policies. It falls within a range of reasonable, acceptable outcomes.
[48] I turn now to the Vavilov analysis.
[49] As a general rule, a reviewing court is to refrain from deciding themselves the issue that was decided by the tribunal in its decision. A reviewing court is concerned not with whether it would have reached he same or another conclusion. Rather, our task is to determine if the decision being reviewed falls within an acceptable range of reasonable decisions that would have been open to the decision maker.
[50] I find that the City’s July 6, 2023, decision meets this standard. It has an internally coherent logic and shows a rational chain of analysis and that is justified in relation to the facts and law before it. I say this because the decision:
a. Carefully considered the Ad, CHP’s position, and the City’s Advertising policy.
b. Recognized that the decision whether to accept the CHP’s Advertisement was a complex one which required the City to do research, seek legal advice, and consult with others.
c. Set out the prima facia interpretation of CHP’s Advertisement, as well as its implications for members of the transgender and non-gender identifying population.
d. Acknowledged the effect that the Advertisement’s message might have on members of the transgender and LGTBQ communities.
e. Acknowledged that the City could not reject the Advertisement simply because it is political speech, or because some people might be offended by it.
f. Acknowledged and addressed, squarely, CHP’s right of free speech and expression as one of the foundations of our democratic society, which prizes the expression of diverse ideals and opinions.
g. Admitted that the CHP’ position and the City’s Equity and Inclusion Policy and the Protocol did not align, and that the City’s position on gender identity, a cultural and political issue, cannot, alone, form the basis of any rejection of the CHP’s Advertisement.
h. Reflected a consideration of broad interests and perspectives.
i. Weighed, carefully, CHP’s important interests against it statutory and policy mandate before declining to run the CHP’s Advertisement.
j. Finally, the City specifically invited CHP to provide its suggestion of how the Advertisement could be reworded to minimize the infringement of CHP’s right to freedom of expression other than as contained in the Advertisement at issue.
[51] The City’s July 6, 2023, letter does not include all arguments that could be made. For example, it could have referred to the fact that the City’s Advertising Policy incorporated by reference the City’s Equity and Inclusion Policy and its Protocol. However, according it appropriate deference, the decision is reasonable on the Vavilov standard.
Issue 4: Is the City Biased?
[52] In para. 101 of its factum, dealing with appropriate remedies, CHP submits that there is no purpose in remitting the matter back to the city for reconsideration because:
In this case, the City has repeatedly acted in a biased and discriminatory manner on this specific issue with these Applicants. The City has a history of censoring the religious and political expression of the Applicants; it is a repeat Charter violator. There is no evidence to suggest that the City will change its behaviour and suddenly stop using government authority to regulate the debate on this political and doctrinal issue. Therefore, remitting the matter to the City for reconsideration serves no useful purpose.
[53] CHP bases this submission on this court’s decisions in CHP v. City of Hamilton, 2018 ONSC 3690, 143 O.R. (3d) 207, and Association for Reformed Political Action Canada v. Hamilton (City of), 2023 ONSC 6443.
[54] I dismiss this allegation. It is merely an opinion expressed in a factum. There is no basis for it in fact.
[55] Further, the CHP v. Hamilton 2018 decision does not support the allegation of bias or that the city is a repeat Charter violator with respect to the CHP’s rights. The decision is a purely procedural one, quashing the City’s decision to take down ads (and the City Council’s Resolution approving of that decision) because the City did not give the CHP the right to be heard on its decision to take down the ads, having accepted them to begin with. Likewise, the ARPAC v. Hamilton decision: it is also procedural in that the city was found to have not provided reasons which balance the competing interests of the applicants in rejecting their advertisements.
Issue 4: Remedy
[56] Given my decision on the first three issues, I need not address the question of remedy.
Conclusion
[57] For the foregoing reasons, the Application is dismissed.
Costs
[58] The CHP and City have agreed that costs should go to the successful party at $35,000.000, all inclusive. The CHP, accordingly, shall pay costs to the City in that amount within 30 days of the release of these reasons.
[59] The Intervenor seeks no costs and, accordingly, none are awarded.
Trimble J.
I agree:
Backhouse J.
I agree:
Mew J.
Released: November 12, 2024
2024 ONSC 6181
DIVISIONAL COURT FILE NO.: DC-23-212-JR6
DATE: 202411127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Trimble, and Mew JJ.
BETWEEN:
CHRISTIAN HERITAGE PARTY OF CANADA ET AL.
Applicant
– and –
THE CITY OF HAMILTON
Respondents
REASONS FOR JUDGMENT
J. K. TRIMBLE J.
Released: November 12, 2024
[^1]: Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817.
[^2]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653.
[^3]: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395.
[^4]: Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613.