Court File and Parties

CITATION: Tafsik Organization et al v. The City of Toronto, 2025 ONSC 6386

DIVISIONAL COURT FILE NO.: DC-25-00000889-0000

DATE: 2025-11-19

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: TAFSIK ORGANIZATION and AMIR EPSTEIN Applicants

AND

THE CITY OF TORONTO Respondent

AND

INTERNATIONAL CENTRE OF JUSTICE FOR PALESTINIANS – CANADA and NATIONAL COUNCIL OF CANADIAN MUSLIMS Intervenors

BEFORE: The Honourable Mr. Justice M.D. Faieta

COUNSEL: Marcy Segal & Jacqueline Lewis, for the Applicants Tafsik Organization and Amir Epstein Matthew Cornett & Catherine Oatway, for the Respondent, The City of Toronto Shane Martinez, for the Intervenor, International Centre of Justice for Palestinians-Canada Nusaiba Al-Azem, for the Intervenor, National Council of Canadian Muslims Vidish Parikh, for the Intervenor, Canadian Muslim Lawyers Association

HEARD: November 14, 2025, and November 17, 2025

ENDORSEMENT

[1] The applicants, Tafsik Organization and its founder and manager, Amir Epstein, bring this motion for an interlocutory injunction restraining the respondent, The City of Toronto (the “City” or “Toronto”), from raising the flag of the State of Palestine at Toronto City Hall on November 17, 2025.

[2] At approximately 9:30 on November 17, 2025, I dismissed the application for an injunction with reasons to follow. These are those reasons.

BACKGROUND

Toronto’s Flag Raising Policy

[3] In 1999, Toronto adopted a policy that permits members of the community to raise the flag of other nations on a ceremonial flagpole that is on the roof of the podium at City Hall (the “Flag Policy”). This policy is based on recommendations made by Toronto’s Strategic Policies and Priorities Committee, which were adopted by the City Council in Toronto By-law No. 4-1999: See Vietnamese Assn. of Toronto v. Toronto (City) (2007), 85 O.R. (3d) 656 (Div. Ct.), at para. 2.

[4] The adopted recommendations that reflect the Flag Policy state in part:

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

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

(5) The appropriate City of Toronto staff be authorized and directed to take the necessary action to give effect thereto. [Emphasis added.]

[5] Additional details about the Flag Policy are found on Toronto’s website, which states:

Flag raisings enhance public awareness of activities such as fundraising drives, multi-cultural events and national or independence days. …

Flags are used as a symbolic identification for countries, provinces, municipalities and organizations. The manner in which flags may be displayed in Canada is not governed by legislation, but rather by established practice which the City of Toronto also observes.

The use of the courtesy flag pole neither implies nor expresses support for the politics or policies of nations and/or organizations but raises the flag in recognition of those citizens or members that have made the request.

Please review the criteria below and submit your flag raising request using our online request form. …

Required Information:

• Official letterhead, an official website link or your organization’s social media account (i.e. Facebook)

• Proposed date and time of flag raising ceremony

• Purpose of flag raising

• Ceremony details …

• Equipment required for the flag raising ceremony: e.g. lectern, microphone, CD player

• Name of flag to be raised

• Photo of flag to be raised

Further details about flag raisings

• Organizations may request one courtesy flag raising within the calendar year (January 1 to December 31)

• Upon request, flags of nations may be flown once within the calendar year for either a country’s national day or on the anniversary of a special occasion.

• Request to use the courtesy flagpole will be confirmed on a first come first served basis.

• Your flag raising request should be received by Strategic Protocol & External Relations three to four weeks in advance of your request date.

• Organizations with approved flag raising requests are required to provide a flag with metal grommets …

• The flag must be delivered to the Strategic Protocol & External Relations office one week in advance of the flag raising date.

• You are welcome to invite the Mayor and Members of Council to your flag raising …

If you would like to book an event/ceremony as part of your flag raising, you will require a valid Civic Centre Public Space booking account. …

Requests will not be approved for:

• Political parties or organizations

• Religious organizations or in celebration of religious events

• Commercial entities or in celebration of corporate events

• Intent that is contrary to City policies or bylaws

• Organizations requesting flag raisings that espouse hatred, violence or racism

• Flags of organizations or nations that have already flown a flag on a courtesy flag pole within the same calendar year.

Toronto City Council does not approve individual flag raising requests. The City of Toronto’s Chief of Protocol has been delegated authority from City Council to approve these requests. …. [Emphasis added]

[6] In 2025, Toronto has raised approximately 40 national flags at City Hall and civic centres in response to requests by various community members and organizations.

The ICJP’s Application

[7] On July 3, 2025, the International Centre of Justice for Palestinians (“ICJP”), submitted a letter to the Clerk’s Office requesting that Toronto fly the Palestinian flag for a period of seven days beginning on November 29, 2025, which has been declared by the United Nations to be the International Day of Solidarity with Palestinian People. Toronto states that this request did not conform with the Policy as the State of Palestine was not recognized as a state by the Government of Canada at that time.

[8] On September 21, 2025, the Office of the Prime Minister of Canada issued a press release declaring that the Government of Canada officially recognizes the State of Palestine.

[9] In response to an inquiry from Toronto, on September 23, 2025, a representative from Global Affairs Canada notified a member of the Chief of Protocol’s staff that “Canada’s recognition of a Palestinian state was effective September 21, following the PM’s statement”.

[10] Shortly thereafter, the ICJP amended its request to ask that it be permitted to: 1) raise the flag of the State of Palestine for one day during the week of November 15, 2025 in recognition of its independence day, and 2) hold a flag-raising ceremony.

[11] On November 6, 2025, the ICJP’s request was approved (the “Approval”). An email from the City Clerk’s Office – Strategic Protocol & External Relations to ICJP states:

The City of Toronto has approved your request to raise the Flag of Palestine. Further to our discussions, the flag will be raised at the Podium Roof courtesy flagpole at Toronto City Hall for the day on November 17th to mark Palestine’s Independence Day (which is to be observed on November 15). …

You have indicated on the online request that you would … also like a ceremony at 9 am. For that purpose I have cc’d [the relevant City staff] and one of them will reach out to you. A valid Civic Centre Public Space booking account is required to be able to book a ceremony. …

[12] The Chief of Protocol states that the ICJP’s request to raise the Palestinian flag was approved because:

(a) The ICJP requested the City raise the flag of a nation that is recognized by the Government of Canada.

(b) The purpose of the request is to recognize Palestine’s national independence day.

(c) The proposed flag-raising will be one day in duration.

(d) The proposed flag was not the flag of a political party, religious organization or commercial entity.

(e) The ICJP’s request was to raise the flag of a state recognized by the Government of Canada so it was not a request to raise a flag that espouses hatred, violence or racism.

[13] On or about November 10, 2025, the ICJP submitted the required forms to Toronto including a Declaration of Compliance with Anti-Harassment/Discrimination Legislation & City Policy.

Application for Judicial Review

[14] On November 13, 2025, the applicants filed this application for judicial review as well as a motion for an interlocutory injunction.

[15] In their application for judicial review, the applicants sought, amongst other things:

(a) An order quashing or setting aside the decision of the City of Toronto Chief of Protocol approving the flag-raising ceremony for the Palestinian flag at City Hall courtesy flagpole scheduled for November 17, 2025.

(b) An interim, interlocutory and permanent injunction restraining the City of Toronto, and any person acting under its authority, from proceeding with the ceremony and from raising the Palestinian flag at the City Hall flagpole, pending the final determination of this application.

(c) In the alternative, an order staying the impugned approval and any related City actions pending the disposition of this application.

(d) A declaration that the impugned approval is unreasonable, contrary to law, and inconsistent with the City’s Flag Raising Policy and the City’s duty of neutrality.

(e) A declaration that the approval contravenes the City’s obligations to safeguard public safety, community cohesion, and equality, and is contrary to the purposes set out in the City of Toronto Act, 2006.

[16] As noted, on this motion the applicants sought an interlocutory injunction restraining Toronto from raising the Palestinian flag or holding any ceremony pending the final determination of their judicial review application.

[17] The applicants’ motion was heard at 4:00 pm on Friday, November 14, 2025. The ICJP, the National Council of Canadian Muslims and the Canadian Muslim Lawyers Association attended for the purpose of seeking intervenor status. They sought and were granted intervenor status on condition that they deliver a factum, and if they wish a supporting affidavit, by Noon on November 16, 2025. The Canadian Muslim Lawyers Association did not file a factum or any other materials. Submissions from the applicants and the City were heard on November 14, 2025 and this motion was adjourned to 8:15 am on November 17, 2025, so that the Intervenors would have the opportunity to make brief submissions and the applicants would have the opportunity to reply to the intervenors’ submissions as well as the City’s submissions.

ANALYSIS

[18] Before turning to the issue of whether an interlocutory injunction should be granted, I note that the City reserved its position regarding whether the applicants have standing to bring this application for judicial review. As such, I am assuming the applicants have standing for the purposes of this analysis without deciding the issue.

[19] The general principles surrounding the issuance of an interlocutory injunction were explained by Abella J. in Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, [2017] 1 S.C.R. 824, as follows at paras. 24-25:

[24] An interlocutory injunction is normally enforceable until trial or some other determination of the action. Interlocutory injunctions seek to ensure that the subject matter of the litigation will be "preserved" so that effective relief will be available when the case is ultimately heard on the merits. Their character as "interlocutory" is not dependent on their duration pending trial. [Citations omitted.]

[25] RJR - MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, sets out a three-part test for determining whether a court should exercise its discretion to grant an interlocutory injunction: is there a serious issue to be tried; would the person applying for the injunction suffer irreparable harm if the injunction were not granted; and is the balance of convenience in favour of granting the interlocutory injunction or denying it. The fundamental question is whether the granting of an injunction is just and equitable in all of the circumstances of the case. This will necessarily be context-specific.

[20] The burden of proof rests upon the party seeking an injunction. However, the three criteria described above are not watertight compartments. The strength of one may compensate for the weakness of another: Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), p. 677.

Is there a Serious Issue to be Tried?

[21] The general rule is that the court shall “... undertake a preliminary investigation of the merits to decide whether the applicant demonstrates a ‘serious question to be tried’, in the sense that the application is neither frivolous nor vexatious”: R. v. Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 S.C.R. 196, at para. 12.

[22] The applicants submit:

(a) The Approval is ultra vires as it is beyond the City’s jurisdiction under s. 8(2)6. of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A (the “Act”).

(b) The Approval is unreasonable as it breaches the City’s Flag Policy.

(c) The Approval is unreasonable as raising a politically charged foreign flag at City Hall in the present context conveys partisanship and undermines neutrality and cohesion among communities and does not maintain municipality neutrality as required by Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3.

(d) The Approval is unreasonable as it lacks transparency, justification and intelligibility

[23] On this application for judicial review, the City’s decision to issue the Approval is subject to the standard of reasonableness. This requires a reviewing court to consider only whether the actual decision under review, including both the rationale for the decisions and the outcome to which they led, was unreasonable: Johnston v. Ontario Labour Relations Board, 2025 ONSC 6105, at para. 23.

[24] The scope of the review of an administrative decision for reasonableness was further described in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 as follows:

[82] Reasonableness review aims to give effect to the legislature's intent to leave certain decisions with an administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law.

[83] It follows 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 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. The Federal Court of Appeal noted in Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171, that"as reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did": at para. 28. Instead, the reviewing court must consider only whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable.

[99] A reviewing court must develop an understanding of the decision maker's reasoning process in order to determine whether the decision as a whole is reasonable. To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision.

[100] The burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside on this basis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision. It would be improper for a reviewing court to overturn an administrative decision simply because its reasoning exhibits a minor misstep. Instead, the court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable.

[101] What makes a decision unreasonable? We find it conceptually useful here to consider two types of fundamental flaws. The first is a failure of rationality internal to the reasoning process. The second arises when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it. There is, however, no need for reviewing courts to categorize failures of reasonableness as belonging to one type or the other. Rather, we use these descriptions simply as a convenient way to discuss the types of issues that may show a decision to be unreasonable. [Citations omitted.]

Is the Approval Beyond the City’s Jurisdiction?

[25] The applicants submit that, in issuing the Approval, the City acted beyond its jurisdiction under s. 8(2)6. of the City of Toronto Act, 2006 as “… flying a foreign political flag in the context of an ongoing international conflict is not a proper municipal purpose and risks public order and safety”.

[26] Subsections 8(1)-(3) of the Act state:

Broad authority

8 (1) The City may provide any service or thing that the City considers necessary or desirable for the public.

City by-laws

(2) The City may pass by-laws respecting the following matters:

4. Public assets of the City acquired for the purpose of exercising its authority under this or any other Act.

5. Economic, social and environmental well-being of the City, including respecting climate change.

6. Health, safety and well-being of persons.

7. Services and things that the City is authorized to provide under subsection (1). …

Scope of by-law making power

(3) Without limiting the generality of section 6, a by-law under this section respecting a matter may,

(a) regulate or prohibit respecting the matter;

(b) require persons to do things respecting the matter;

(c) provide for a system of licences respecting the matter.

[27] Like any property owner, Toronto has the right to establish policies regarding how its property, including its flagpoles, may be used. Pursuant to By-law No. 4-1999, Toronto has chosen to adopt the Flag Policy and establish policies for the administration of requests from the public for the raising of a flag. It has ample authority to do so under s. 8(2)4., 8(2)5. and 8(2)7. of the Act. Accordingly, the issue is not whether the Approval is contrary to its bylaw making authority under s. 8(2)6 of the Act but rather whether the decision to grant the Approval was reasonable given the terms of the Flag Policy.

[28] There is no serious issue raised by the submission that Toronto acted beyond its statutory jurisdiction in issuing the Approval.

Was the Decision to Issue the Approval unreasonable on the basis that it breaches the Flag Policy?

[29] The applicants submit that the Approval breaches the Flag Policy for the following reasons:

(a) The State of Palestine has not been unconditionally recognized as a country by the Government of Canada.

(b) The Approval was requested by an organization that espouses hatred, violence or racism.

Canada’s Recognition of the State of Palestine

[30] The applicants submit that Canada’s recognition of the State of Palestine is conditional and that celebrating “Palestinian Independence Day” at City Hall risks misrepresenting the Government of Canada’s position and stepping into sensitive foreign affairs terrain beyond proper municipal purposes.

[31] The applicants reference a statement issued by The Right Honourable Mark Carney, Prime Minister of Canada, on September 21, 2025. It does not state that the recognition of the State of Palestine is conditional but rather that it follows certain “commitments” made by the Palestinian Authority. It states:

Since 1947, it has been the policy of every Canadian government to support a two-state solution for lasting peace in the Middle East …

Hamas has terrorized the people of Israel and oppressed the people of Gaza, wreaking horrific suffering …

The current Israeli government has worked methodically to prevent the prospect of a Palestinian state from ever being established. …

It is in this context that Canada recognizes the State of Palestine and offers our partnership in building the promise of a peaceful future for both the State of Palestine and the State of Israel. …

Recognizing the State of Palestine, led by the Palestinian Authority empowers those who seek peaceful coexistence and the end of Hamas. …

The Palestinian Authority has provided direct commitments to Canada and the international community on much needed reforms, including to fundamentally reform its governance, to hold general elections in 2026 in which Hamas can play no part, and to demilitarize the Palestinian state. With our international partners, Canada supports the development of a credible peace plan, democratic governance and clear security arrangements for Palestine, and the sustained, large-scale delivery of humanitarian aid into and throughout Gaza. [Emphasis added.]

[32] Further, on September 23, 2025, in response to an inquiry from a member of the Clerk’s Office, Global Affairs Canada confirmed that the Government of Canada recognized the State of Palestine effective September 21, 2025.

[33] There is no serious issue raised by the submission that the City acted unreasonably in determining that the requirement that the request was made to “fly the flag of any country recognized by the Federal Department of Foreign Affairs” was satisfied given the unconditional language of Prime Minister’s Statement and the confirmation from Global Affairs Canada.

Was the Approval requested by an organization that espouses “hatred, violence or racism”?

[34] The applicants submit:

(a) The proposed ceremony is organized by or in concert with the ICJP and endorsed by groups including Toronto 4 Palestine, Canadians for Justice and Peace in the Middle East, Labour for Palestine, Palestine House, Toronto Palestinian Families, Toronto-St. Paul’s for Palestine, World BEYOND War (Toronto), Just Peace Advocates, and the Arab Canadian Lawyers Association.

(b) While the ICJP presents as a human-rights organization, organizations the applicants label as co-organizers such as Toronto 4 Palestine have documented links to a November 5, 2025 protest at Toronto Metropolitan University that escalated into violence, resulting in arrests for forcible entry, assault, obstruction, and property damage.

(c) Other groups that have endorsed the flag raising have been criticized for rhetoric perceived as endorsing or normalizing violence and that this creates a triable issue of whether the coalition of organizers falls within the Policy’s prohibition.

(d) The Approval was issued without a transparent assessment of the Flag Policy’s restrictions in light of the organizers’ records and the current community context.

[35] In respect of these assertions, Mr. Epstein states:

Of further concern for the fact that the flag raising is a politically charged event is that the organization that requested the flag be raised and those that are affiliated therewith have been involved in antisemitic violence and protest. I attach and mark as Exhibit “F” to this Affidavit materials identifying the organizers/co-organizers of the application to raise the flag.

[36] Exhibit F references a post made to X (formerly known as Twitter) by Mr. Martinez which states:

On November 17, the Palestinian flag will fly at Toronto City Hall. @ICJPalestine secured this historic flag raising to commemorate the 37th anniversary of the Palestinian Declaration of Independence. The struggle continues for peace, justice and a free Palestine. Join us.

[37] Beneath that post is an image of Toronto City Hall with the statement “Join ICJP and Allies at the Ceremony…”. At the bottom of the image there is a further statement which states that this is endorsed by the Labour for Palestine Toronto and others in font that is too small to read. Also attached as Exhibit F are online newspaper articles which state that city staff have approved a request from ICJP to fly the Palestinian flag in recognition of Palestine’s Independence Day.

[38] Nothing in Exhibit F references anyone other than ICJP as the organizer of the request for the Approval.

[39] Mr. Epstein further states:

Those involved in the application to raise the flag have also been involved in the recent violent incident at Toronto Metropolitan University. The Incident reports/media/police releases re: November 5, 2025 TMU event are attached and marked as Exhibit “G” to this affidavit.

[40] Exhibit G does not attach a police release. It attaches a statement from Toronto Metropolitan University and two news articles – one from CBC News and the other from CityNews Toronto. The newspaper articles state that five people were arrested following after a group of protesters forced entry into a building, damaging property and entered a common area where attendees were gathered hosted off-campus by an organization called Students Supporting Israel. It also reports that Hillel Ontario claims that Students for Justice in Palestine Toronto Metropolitan University put out a call to interfere with the event and encouraged others to do so. There is nothing in Exhibit G, nor in Mr. Epstein’s affidavit, which shows that any of the five people named in those articles that were arrested or Students for Justice in Palestine Toronto Metropolitan University were involved in the application to raise the Palestinian flag.

[41] Toronto submits:

(a) The applicants offer no evidence that the ICJP, being the organization that requested this Approval, is an organization that espouses hatred, violence or racism or that the endorsement of the flag-raising by other pro-Palestinian groups disqualifies the ICJP under the Policy.

(b) There is no logical argument that raising the flag of a nation recognized by the Government of Canada espouses hatred, violence or racism.

[42] Asaf Rashid is the President of the ICJP and states:

The statements contained in the affidavit of Amir Epstein alleging that ICJP-Canada is an “anti-semitic organization” and alleging that it has been “involved in antisemitic violence and protest” are patently false.

ICJP-Canada condemns anti-Palestinian racism and antisemitism alike and works closely with members of the Jewish community. …

The statements in the affidavit of Mr. Epstein alleging that ICJP-Canada was involved in a protest at Toronto Metropolitan University are equally false. ICJP-Canada’s purpose and objectives are rooted in legal advocacy, not protest. Our organization was not involved in any way with the protest in question. …

[43] The ICJP was the only organization that requested the flag raising. Aside from Mr. Epstein’s bald assertion, there is no evidence that ICJP has been involved in antisemitic violence and protest. There is no evidence that ICJP made this request on behalf of anyone or any other organization. The endorsement by any of the other pro-Palestinian groups identified by Mr. Esptein does not transform them into an applicant for the Approval. In any event, aside from Mr. Esptein’s bald assertion that those organizations that are affiliated with the ICJP have been involved in antisemitic violence and hatred, the applicants have not adduced any evidence to that effect.

[44] I find that the assertion that the decision to issue the Approval is unreasonable on the basis that it was issued to an organization that espouses hatred, violence, or racism does not raise a serious issue.

Is the Approval unreasonable on the basis that raising a politically charged foreign flag at City Hall in the present context conveys partisanship, undermines neutrality and cohesion among communities, and does not maintain municipality neutrality as required by Saguenay?

[45] The applicants submit that the Approval permits a politically charged foreign flag at City Hall in the present context conveys partisanship and undermines neutrality and cohesion among communities. They argue that this is contrary to “the duty of municipalities to remain neutral in belief-laden matters” established in Saguenay.

[46] In Saguenay, at para. 77, the court found that the freedom of conscience and religion guaranteed under the Charter of Rights and Freedoms imposes a duty of religious neutrality on the state that prevents a government from using its powers to promote or impose a religious belief. The court also stated:

[75] … in addition to its role in promoting diversity and multiculturalism, the state’s duty of religious neutrality is based on a democratic imperative. The rights and freedoms set out in the Quebec Charter and the Canadian Charter reflect the pursuit of an ideal: a free and democratic society. This pursuit requires the state to encourage everyone to participate freely in public life regardless of their beliefs … The state may not act in such a way as to create a preferential public space that favours certain religious groups and is hostile to others. It follows that the state may not, by expressing its own religious preference, promote the participation of believers to the exclusion of non-believers or vice versa.

[76] When all is said and done, the state's duty to protect every person's freedom of conscience and religion means that it may not use its powers in such a way as to promote the participation of certain believers or non-believers in public life to the detriment of others. It is prohibited from adhering to one religion to the exclusion of all others. Section 3 of the Quebec Charter imposes a duty on the state to remain neutral in this regard. Today, the state's duty of neutrality has become a necessary consequence of enshrining the freedom of conscience and religion in the Canadian Charter and the Quebec Charter. [Emphasis added, citations omitted.]

[47] Neither the Flag Policy nor the Approval promote or impose a religious belief, and thus neither engage the duty of religious neutrality imposed by Saguenay. There is no mention of religion in the Flag Policy nor is there anything in the Approval which suggests that religion was a factor in granting the Approval. By permitting the raising of the flag of the State of Palestine on the City’s courtesy flag pole, the City did not promote Islam in the same way that the City, by permitting the raising of the flag of the State of Israel several months earlier on the same flag pole, did not promote Judaism.

[48] The duty of religious neutrality does not extend to political neutrality. In any event, politics is not a relevant consideration under the Flag Policy for the issuance of an Approval.

[49] The Flag Policy emphasizes that the issuance of an approval should not be viewed as promoting any particular political view. It states that an approval for the use of a courtesy flag pole “neither implies or expresses support for the politics or policies of nations and/or organizations but raises the flag in recognition of those citizens or members that have made the request”.

[50] Toronto’s Chief of Protocol, Aretha Phillip, states that the Flag Policy is designed to promote neutrality:

Some requests that are approved pursuant to the Policy can be viewed by some as controversial – for example, to raise the flag of a nation whose foreign or domestic policies may not be popular in Canada. However, the Policy is designed to ensure neutrality and to avoid biases and value judgements on the part of City Staff and City Council by requiring only that the flag requested to be raised is that of a nation recognized by the Government of Canada.

[51] I find that the applicants’ assertion that the decision to issue the Approval was unreasonable on the basis that it promoted the State of Palestine, or its policies, or that it breached the duty of religious neutrality does not raise a serious issue.

Is the Approval unreasonable on the basis that it lacks transparency, justification and intelligibility?

[52] As noted, the Chief of Protocol explained why the City issued the Approval and how the request satisfied the Flag Policy.

[53] In this context, the applicants submit that the Chief of Protocol lacks transparency, justification and intelligibility in light of public safety concerns. However, public safety concerns are not a relevant consideration under the Flag Policy. The Chief of Protocol states:

The City does not have discretion under the Policy to deny a flag-raising request solely on the basis that the raising may be controversial or raise safety concerns. Any potential safety concerns with respect to the flag-raising are assessed on a case-by-case basis by the City and, if there are any such concerns, the City coordinates with security staff as necessary, who assist in ensuring that …appropriate security or police support is available to address potential public safety concerns.

If there are any safety concerns with respect to a flag-raising ceremony, they are addressed on a case-by-case basis by CREM [Toronto’s Corporate Real Estate Management Division] and security personnel. Where the City Clerk’s Office or CREM/security personnel have significant concerns regarding safety, they may coordinate the assistance of Toronto Police.

[54] The Chief of Protocol has made arrangements to address public safety concerns relating to the raising of the State of Palestine’s flag. She states:

The City Clerk’s Office is aware that the ICJP’s request to raise the flag of Palestine could present security concerns. With respect to both the flag-raising and the ceremony that will follows, my Office, CREM and other City divisions have coordinated with security personnel and Toronto Police to facilitate appropriate security resources for both events.

As of [November 14, 2025], City staff are prepared to set up and coordinate the flag-raising and the ceremony in normal course, with the assistance of security personnel and Toronto Police, as appropriate.

[55] I find that the assertion that the decision to issue the Approval is unreasonable on the basis that it lacks transparency, justification and intelligibility does not raise a serious issue.

Will the Applicants Suffer Irreparable Harm?

[56] Irreparable harm is characterized by the nature, rather than the magnitude of harm. It is harm which either cannot be quantified in monetary terms or cannot be cured, usually because one party cannot collect damages from the other: Ahmed v. Abdelmoaein, 2025 ONCA 618, para. 34.

[57] While absolute certainty is not required to establish irreparable harm, the evidence must be clear, go far beyond speculation, and satisfy the balance of probabilities: Muslim Association of Canada v. Attorney General of Canada, 2022 ONSC 7284, at para. 17; Kanda Tsushin Kogyo Co. v. Coveley (1997), 96 O.A.C. 324 (Div. Ct.), at para. 14.

[58] In RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at pp. 344-345, Sopinka and Cory JJ. stated:

When a private applicant alleges that the public interest is at risk that harm must be demonstrated. This is since private applicants are normally presumed to be pursuing their own interests rather than those of the public at large. In considering the balance of convenience and the public interest, it does not assist an applicant to claim that a given government authority does not represent the public interest. Rather, the applicant must convince the court of the public interest benefits which will flow from the granting of the relief sought.

[59] In their Notice of Motion, the applicants state:

The ceremony is likely to exacerbate division within Toronto given the current political climate and is likely to cause additional fear among Toronto’s Jewish community in a manner not compensable by damages, particularly given recent documented incidents and the involvement of certain co-organizers associated with volatile protests. Psychological harm, erosion of trust in municipal neutrality and the risk of confrontation are intangible and irreparable.

[60] The applicants submit that this flag raising event could lead to public demonstrations, counter-protests, civil disorder and public safety incidents. They submit that the flag raising will embolden political antisemitic organizations that have requested that the flag be raised.

[61] The Intervenor National Council of Muslims [“NCCM”] submits:

The Applicants’ materials contain numerous troubling characterizations, including:

a. The assertion that Palestinian flag-raising inherently threatens public safety;

b. The conflation of Palestinian solidarity with hatred, violence or racism;

c. The suggestion that Palestinian cultural expression requires exceptional security measures; and

d. The framing of peaceful cultural ceremonies as threats to public order.

The Applicants have provided scant to no credible or reliable evidence that raising the Palestinian flag poses a risk to public safety or would credibly cause public disorder. Such assertions are particularly speculative and imagined, manufactured hysteria in the context of multiple Palestine symbolic demonstrations occurring in various cities across the country over the weekend, including a ceremonial flag raising in Manitoba and in multiple other cities that have all occurred peacefully and smoothly.

Rather, what animates the Applicants’ public safety theory is not any real evidence or an attempt to distinguish available contradictory evidence, but a racialized narrative that aligns with recognized forms of [Anti-Palestinian Racism] and long-standing Islamophobic tropes portraying Palestinians, Arabs, Muslims and those who support them as inherently volatile, dangerous or posing an enhanced security risk than other groups of people. …

Indeed, at one point the Applicants’ written submissions attempt to describe the alleged evidence of security risks and violence by stating, “Verified police and media reports confirm that, at a demonstration on [insert date] at [location] several individuals associated with these organizations were arrested by the Toronto Police Service following a confrontation with members of a Jewish community group.

This assertion explains neither what the specific organizations are alleged to have been associated with the unspecified demonstration, nor how those impugned organizations are materially and in actuality associated with the flag raising.

Where the evidence fails to draw these important links in a cogent, compelling and clear manner to rise to any evidentiary threshold for the Applicant to discharge their burden of proof on this motion, it appears that the Applicants are literally and figuratively expecting the court to fill in the blanks – with little more than racialized narratives.

[62] In a further affidavit delivered the evening of November 16, Mr. Epstein stated:

As a visibly Jewish person and as the leader of a Jewish civil-rights organization, I have experienced a marked increased in harassment and intimidation since October 2023 when attending or moving near large demonstrations where Palestinian flags are displayed. …

The prospect of the City of Toronto formally raising the Palestinian flag at City Hall in the current climate, with the support or endorsement of organizations that are centrally involved in these demonstrations, exacerbates these fears. It sends a message that the City is willing to give its official platform to a symbol that, in practice, has become closely associated with movements and events where Jews are targeted. This is further exacerbated by the mere fact that the Hamas Charter and the Palestinian Charter call for the destruction of Israel and by association, the Jewish People. …

I believe that if the Palestinian flag-raising proceeds as planned on 17 November 2025, there is a real and non-speculative risk of:

1. Further normalization of antisemitic rhetoric in the public square;

2. Emboldening individuals and groups that already engaged in intimidation or violence against Jewish residents; and

3. Serious psychological and dignitary harm to members of Toronto’s Jewish community, including students, families and holocaust survivors. …

Tafsik is not seeking to prevent Palestinians or their supporters from expressing their identity or political views in general. Our concern in this proceeding is specifically with the City of Toronto granting its official endorsement and platform, at City Hall, to a flag-raising in the current environment, in circumstances where that symbol has been repeatedly used at events involving antisemitic hate and glorification of violence.

[63] The applicants’ assertion that public demonstrations, counter-protests, civil disorder and public safety incidents will result from the raising of the State of Palestine’s flag at City Hall is nothing more than speculation. Further, as noted earlier, there is no cogent evidentiary basis raising the State of Palestine’s flag poses a threat to public safety or presents a real risk of the normalization of antisemitic behaviour in the public square.

[64] The applicants further submit that Toronto will “permanently communicate municipal endorsement of a contentious political position, undermining public confidence in the City’s neutrality and in the rule of law”. Such speculation fails to recognize that the Flag Policy makes it clear that the issuance of an approval to use Toronto’s flag pole neither implies nor expresses support for the politics or policies of nations whose flags have been raised.

[65] I find that the applicants have not established, on the balance of probabilities, that irreparable harm of the types that they have asserted would result if an interlocutory injunction is not granted.

Balance of Convenience

[66] When considering the balance of convenience, a court must consider which party would suffer the greatest irremediable prejudice from the granting or refusal to grant an interlocutory injunction.

[67] In supplementary submissions filed in the evening of November 16, the applicants submitted:

The City suffers no material prejudice by deferring an optional, discretionary symbolic event.

The [City] contends that denying the injunction would harm the Palestinian community’s ability to use a “public amenity”. This trivializes the broader consequences …

In contrast, Applicant and the Jewish community would face irreversible harm if the flag is raised before judicial review of its legality.

The Intervenor [NCCM] suggests that this injunction would be disproportionately inconvenient for Palestinians, Muslims, etc. First, we are only dealing with Palestinians and not the entire [M]uslim world. We only need to look at the statistics of who is reporting hate crimes in the country over the past many years to know who is suffering from racism and who stands to suffer the most.

The public interest weights heavily in favour of restraint. Municipal property should not be used as a forum for political endorsement that risks division or violence.

Preventing potential disorder and safeguarding equality are core public interests. The City’s discretion must be exercised in a manner that preserves confidence in civic impartiality.

[68] The NCCM submits:

At the third step of the test, public interest issues may tip the scales of convenience, but this consideration applies to all public interests – society general[ly] and particular interests of identifiable groups.

The Applicants selectively invoke community impacts while ignoring the community which would be most directly affected by the suppression of its cultural and national symbol – the Canadian Palestinian, Arab, Muslim and allied communities. These harmful impacts including a chilling effect of expression, the reinforcement of discriminatory stereotypes, exclusion from civic participation, and a message of second-class citizenship.

[69] The City submits:

The applicants simply will not suffer harm from the raising of the flag of a recognized country any more than they would if a person carried a Palestinian flag on a City street, while the ICJP … and Palestinian community will be deprived of the opportunity to use a public resource that is regularly made available to similar groups. The balance of convenience favours maintaining the City’s administrative decision made in line with an established, neutral Policy where the applicants have not shown any serious issue to be tried or any irreparable harm.

[70] The applicants have not established that irreparable harm would result if this motion was granted, whereas there would be irreparable harm, as identified by the City and NCCM, if this motion was granted. I find that the balance of convenience favours the dismissal of this motion.

CONCLUSIONS

[71] I find that it is just and equitable to dismiss the applicants’ motion for an interlocutory injunction.

[72] The applicants and intervenor NCCM do not seek costs. Toronto and intervenor ICJP seek costs. I find that it is fair and reasonable for the applicants to pay costs of $3,500.00 to Toronto. Costs are not typically awarded to, or against, an intervenor. I see no reason to depart from that principle. No costs shall be awarded to the ICJP.

M.D. Faieta J.

RELEASED: November 19, 2025