Court File and Parties

COURT FILE NOS.: CV-18-540-00 and CV-18-774-00 DATE: 20181126 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty the Queen in Right of Ontario as represented by The Minister of Transportation Applicant – and – 2523654 Ontario Inc., Aamir Khan, Abdul Qayyum Mian and Sam Guido Respondents

Counsel: Jeffrey Costain, for the Applicant Eric O. Gionet, for the Respondents

AND BETWEEN: 2523654 Ontario Inc. Applicant – and – Her Majesty the Queen in Right of Ontario as represented by The Minister of Transportation Respondent

Counsel: Eric O. Gionet, for the Applicant Jeffrey Costain, for the Respondent

HEARD: August 17, 2018

REASONS FOR DECISION DiTOMASO J.

Introduction

[1] There are two applications before the court. The applicant, Her Majesty the Queen in right of Ontario as represented by the Minister of Transportation (the “MTO”) seeks to remove trailer signage located on 17 McKay Road East, in the City of Barrie (the “Subject Lands”) within 400 metres of the Highway 400 right-of-way. The respondents are opposed to the removal of the trailer signage. The respondent, 2523654 Ontario Inc. (“252”) brought a counter-application for a declaration that the trailer signage on trailers parked on the Subject Lands is not prohibited either by the MTO Corridor Signage Policy (the “Policy”) or the Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P50 (the “Act”). The respondents have not removed the disputed trailer signage.

The Applications

[2] The initial application was brought by the MTO to remove the trailer signage. The counter-application was brought by 252 for a declaration that the advertising on the trailers does not offend either the MTO Policy or the Act.

The MTO Application

[3] The MTO brings an application under s.112(1) of the Act for a warrant directing the Sheriff of Simcoe County to put down such resistance or opposition to enable the MTO staff and/or their authorized agents to remove trailer signage located on 17 McKay Road East, in the City of Barrie, within 400 metres of the Highway 400 right-of-way. The language for the remedy sought is derived from this section of the Act.

[4] It is the position of the MTO that the trailer signage is prohibited by s. 38(2)(e) of the Act. The application for permits for the trailer signage made by a respondent has been rejected as not being in compliance with the MTO Policy. The MTO has asked that the unlawful trailer signage be removed. It has not been removed.

[5] A Direction pursuant to s. 38(5)(b) of the Act to remove the trailers has not been complied with. An Authorization exists to permit the MTO entry on to the Subject Lands to remove the trailers. Counsel on behalf of 252 indicated that should the MTO enter upon the Subject Lands to remove the trailer signage, legal action would be taken. The MTO submits that this resistance or opposition to the removal of the trailer signage has necessitated this application for a warrant to enable the MTO staff and/or their authorized agents to remove the trailer signage.

[6] Regarding the MTO’s application, the respondents take the position that the MTO has relied upon incorrect legislative authority which does not apply to the trailer advertising. It is submitted that the MTO’s Direction is invalid and improper. Further, the Authorization is also invalid and improper, as it too is based on the wrong legislative authority. The respondents submit that they are not taking any steps to resist or oppose the MTO’s efforts to remove the trailer signage. Communications from the respondents, as per legal counsel and his legal advocacy on behalf of the respondents, does not constitute resistance or opposition within the meaning of the Act. It is submitted that the MTO’s application ought to be dismissed for these reasons.

The Counter-Application of 252

[7] 252 submits that its counter-application ought to be granted because the trailer advertising does not violate the MTO Policy. It is submitted that the MTO is attempting to treat the trailer advertising as if it were “billboards” as defined under the Policy. However, it is submitted that s. 6.4 of the Policy sets out a specific provision dedicated to and dealing with “Advertising Messages On Trucks, Trailers, Etc.” It is submitted that none of the trailer advertising is offensive for reasons articulated in the Policy and thus not prohibited by the MTO Policy.

[8] Both the MTO’s application and 252’s counter-application were heard at the same time. 252 did not file an Application Record. Rather, 252 has relied upon the Application Record filed by the MTO. The parties agree that the facts are not in dispute. However, the parties cannot agree on the proper interpretation of the MTO Policy and the application of the correct provisions of the Act.

Factual Overview

[9] The MTO filed an Application Record which contains the Affidavit of Christian Singh, affirmed April 4, 2018. Mr. Singh is the Corridor Management Supervisor, Senior Project Manager within the MTO. In support of his Affidavit are numerous exhibits found at Tabs A through AA.

[10] Mr. Singh’s evidence is summarized in the Factum delivered on behalf of the MTO. It is from the Application Record summarized in the MTO’s Factum that the factual overview is presented and accepted by the court.

[11] The respondent, Abdul Qayyum Mian, is the registered owner of the Subject Lands which neighbours Highway 400. The respondent, Aamir Khan, is the sole director and officer of 252, which was named on applications for permits. As per a letter from counsel, it appears that 252 carries on business as Kell’s Garden City (“Kell’s Garden”), which is the business occupying the Subject Lands. The respondent, Sam Guido, is the owner of Kell’s Garden [1].

[12] Some time prior to May 26, 2016, the respondents placed or allowed to be placed a number of tractor trailers on the Subject Lands. These trailers are positioned such that one of their long sides faces the northbound lanes of Highway 400; those highway-facing sides are each covered with an advertisement. These advertisements are different on each trailer and none relate to Kell’s Garden. The trailers are all within 400 metres of the edge of Highway 400 [2].

[13] On May 26, 2016, an MTO representative sent a letter to Kell’s Garden, asking that the trailers be removed. That letter was returned to sender. The MTO then sent the letter via email on June 3, 2016 and Mr. Khan responded [3].

[14] Mr. Khan and the MTO representative spoke by phone about the trailers on June 6, 2016; further communications regarding the removal of the trailers followed [4].

[15] On October 14, 2016, the MTO received 7 sign applications relating to the trailers on the Subject Lands; the property owner was named as A.Q. Mian [5].

[16] On October 28, 2016, an MTO representative wrote to Mr. Mian, denying the sign applications and directing him to remove the existing signs [6].

[17] On January 26, 2017, the MTO received a letter from counsel for 252, indicating that if the MTO were to attempt to remove the trailers, legal action would be commenced [7].

[18] On December 1, 2017, an MTO representative sent a Notice to Mr. Mian, asking that the trailers be removed and stating that failure to do so could lead to further actions by the MTO [8].

[19] Following further emails between an MTO representative and counsel for 252, counsel wrote to the MTO on December 18, 2017, stating that the trailers would not be removed and taking the position that the MTO would be without legal authority if it entered onto the Subject Lands to remove the trailers [9].

[20] On January 8, 2018, the MTO sent a Direction pursuant to paragraph 38(5)(b) of the Act to the respondent, Mr. Mian, via registered mail directing him to remove the trailers within 30 days [10].

[21] On January 18, 2018, counsel for 252 responded to the Direction via letter, asking if the Direction was intended to be the MTO’s response to counsel’s previously outlined position [11].

[22] Following some email communications, representatives of the MTO met with counsel for 252, and the respondent, Mr. Mian, and the respondent, Mr. Guido, identified as the owner of Kell’s Garden City, on February 2, 2018. At that meeting, the MTO representatives confirmed their position that the trailers were not in compliance with the Act or the Policy and stated that the trailer signage must be removed [12].

[23] An MTO representative had further email communications with counsel for 252, with the last such email being March 13, 2018. There have been no further communications since that date [13].

[24] The trailer signage remains in place on the Subject Lands. An Authorization exists for the authorized agent of MTO to enter upon the Subject Lands to remove the trailers [14].

[25] The parties agree that the disputed signage appears on portable trailers. The parties also agree that the disputed signage is located within 400 metres of the limit of controlled access Highway 400.

Positions of the Parties

Position of the MTO

[26] The MTO takes the position that the trailer signage is neither contrary to the Act nor to the Policy. The trailer signage is in excess of the prescribed size and offends s. 38(2)(e) of the Act, which prohibits anyone from displaying a sign, notice or advertising device within 400 metres of any limit of a controlled access highway, unless that sign relates to the premises on which it is situated and is under 60 centimetres by 30 centimetres or unless a permit is obtained from the MTO. It is submitted that the trailer signage is in excess of the prescribed size and does not relate to any business occupying the Subject Lands. Permit applications were not approved by the MTO. The MTO submits that the trailer signage in this case is classified as billboard signs, being signs containing messages that are not related to the property on which the signs are located. Such billboard signs are not permitted within the 400-metre controlled area adjacent to controlled access highways.

[27] It is further submitted that the MTO had authority to issue the direction pursuant to the Act and that the court has the authority to issue a warrant under s. 112(1) of the Act.

[28] The MTO submits that its interpretation of Act and Policy is correct. Further, it submits that the opposition contemplated by the Act need not be physical opposition. In this case, the MTO submits that the opposition is legal opposition to the removal of the portable trailers by the respondents for which the Act provides a legislative remedy. In sum, the MTO submits that its interpretation of the legislation and Policy provision is correct and that it has not misinterpreted either. It is for these reasons that the MTO seeks a warrant and also seeks the dismissal of the counter-application.

The Position of the Respondents

[29] The respondents submit that the MTO’s application ought to be dismissed, in that the MTO relied upon incorrect section numbers of the Act in support of its legislative authority. They submit that the MTO’s direction and authorization are both invalid. Further, the respondents submit that they have not taken any steps to resist or oppose the MTO’s efforts to remove the trailer’s signage. They dispute that communications from the respondents’ legal counsel and his legal advocacy on behalf of the respondents is conduct that constitutes resistance or opposition. It is submitted that the Sheriff’s warrant should not be granted to thwart legal representation or advocacy.

[30] Insofar as the counter-application is concerned, 252’s position is that the trailer advertising provision of the MTO Policy applies. It does not prohibit the advertisements displayed on the trailers. The language used on those advertisements does not offend the Policy.

[31] 252 submits that the MTO has misconstrued, misinterpreted and/or misapplied the signage policy as the applicable provision relates to trailer advertising and not to billboard signage.

The Issues

[32] On the MTO application, the issues to be determined are whether: (a) The trailer signage is contrary to the Act; (b) The MTO had authority to issue the Direction to the respondent, Mr. Mian, directing him to remove the trailer signage from the Subject Lands; and, (c) This Honourable Court has the authority to issue a warrant directing the Sheriff for Simcoe County to put down such resistance or opposition or to take such steps as may be necessary to enable MTO staff and their agents to carry out the Authorization to remove the trailer signage from the Subject Lands and the Highway pursuant to s. 112(1) of the Act.

[33] Regarding 252’s counter-application, the issue to be determined is whether: (a) the trailer advertising falls within the provision of s. 6.4 of the Policy; and, (b) the MTO’s Policy does not prohibit the applicant’s trailer advertising within the controlled area.

Analysis

The Statutory Framework

[34] The Act provides a regime for roadside controls regarding King’s Highway (s. 34) and controlled access highways (s. 38).

[35] These sections are consistent as they establish the following prohibition:

Roadside controls – King’s Highway 34(2) Despite any general or special Act, regulation, by-law or other authority, no person shall, except under a permit therefor from the Minister, (c) display any sign, notice or advertising device, whether it contains words or not, within 400 metres of any limit of the King’s highway, other than…

Roadside controls, controlled-access highways 38(2) Despite any general or special Act, regulation, by-law or other authority, no person shall, except under a permit therefor from the Minister, (e) display any sign, notice or advertising device, whether it contains words or not, other than one sign not more than sixty centimetres by thirty centimetres in size displaying the name or the name and occupation of the owner of the premises to which it is affixed or the name of such premises within 400 metres of any limit of a controlled-access highway;

[36] Both sections prohibit the display of any sign within 400 metres of any limit of the King’s Highway or, in our case, within 400 metres of any limit of Highway 400.

[37] The parties agree that the disputed signage is within (emphasis mine) the 400-metre zone or corridor established by the Act.

[38] Further, the parties agree that we are dealing with seven portable signs. The disputed signage is displayed on portable trailers. Section 38(1) of the Act defines a portable sign as follows:

38(1) …“portable sign” means a sign or advertising device that is not permanently attached to the ground, a building or a structure or that is designed to be moved from place to place.

[39] Section 34(1)(1) and Section 38(1) have the identical definition for “portable sign”.

[40] Whether the signage relates to a King’s Highway or a controlled access highway, each section (ss. 34 and 38) provides a mechanism for the Minister to direct the removal of the portable sign where such a sign is displayed contrary to s. 38(2).

[41] Section 38(7) provides:

Direction to remove Where a portable sign is displayed contrary to the provisions of subsection (2), the Minister may direct, (a) the owner of the portable sign, if the Minister is able to ascertain who and where the owner is; (b) The person on whose behalf the portable sign is displayed, if clause (a) does not apply but the Minister is able to ascertain who and where that person is; or (c) the owner of the land on which the portable sign is displayed, if clauses (a) and (b) do not apply, to remove the sign.

[42] Section 38(8) provides for the removal of signage, as follows:

Removal of Sign 38(8) Where a sign in respect of which a direction is given under subsection (7) is not removed within five days after the direction is given, the Minister may in writing authorize any person to enter upon the land involved and to do whatever is necessary to remove the sign.

[43] Further, s. 34(10) provides for service of direction and specifically refers to ss. 38(5) or 38(7) and the consequences of failure to comply with the Direction and the Authorization to remove. See ss. 34(11) and 38(8).

[44] Section 34(13) creates and offence for contravening the Act and, in our case, ss. 38(2) or 38(3) or fails to comply with a Direction given under ss. 34, 38(5) or 38(7),

Offence 34(13) Every person who contravenes subsection (2), (4), 38(2) or 38(3) or who fails to comply with a direction given under subsection (3), (6), (8), 38(5) or 38(7) is guilty of an offence and on conviction is liable to a fine of not less than $50 and not more than $500 for a first offence and not less than $200 and not more than $1,000 for any subsequent offence.

[45] Section 36 of the Act deals with the interplay of highways designated as King’s Highway and controlled-access highways:

Controlled-access highway designation 36(1) The Lieutenant Governor in council may designate any, (a) highway; or (b) proposed highway as a controlled-access highway and every highway so designated shall be deemed to be part of the King’s Highway and the provisions of this Act and the regulations that apply to the King’s Highway apply with necessary modifications to such controlled-access highway.

[46] The respondents submit the MTO relies on ss. 34 and 38(5)(b) of the Act in support of legislative authority. They submit that s. 34 does not apply to this situation involving trailers advertising adjacent to Highway 400 because we are dealing with Highway 400, a controlled-access highway and not a King’s Highway.

[47] They submit the MTO has incorrectly relied upon the legislative authority. It is submitted that s. 38(5)(b) does not apply to a portable sign. Rather, ss. 38(7) and (8) are the applicable sections dealing with portable signs. It is submitted that pursuant to s. 38(6), the direction to remove found at s. 38(5)(b) does not apply to portable signs. The proper section applicable to portable signs, rather, is the direction to remove found at s. 38(7) and further, the removal of the sign found at s. 38(8) of the Act.

[48] For the following reasons, I reject this submission.

Is the Trailer Signage contrary to the Act?

[49] For the following reasons, I find the answer to this question is “yes”. Sections 34 and 38 must be read together. I reject the argument that these sections are mutually exclusive. The sections are consistent in that they prohibit the display of signage without a permit within the prohibited zone or corridor, be it within 400 metres of any limit of the King’s Highway or within 400 metres of any limit of any controlled-access highway (Highway 400).

[50] Section 36 provides that every highway designated as a controlled access highway shall be deemed to be part of the King’s Highway and the provisions of the Act and the regulations that apply to the King’s Highway apply with necessary modifications to a controlled-access highway.

[51] In our case, s. 34(13) incorporates ss. 38(2) and 38(7).

[52] Section 38(2)(e) of the Act prohibits anyone from displaying a sign, notice or advertising device within 400 metres of any limit of a controlled-access highway, unless that sign relates to the premises on which it is situation and is under 60 centimetres by 30 centimetres, or unless a permit is obtained from the MTO.

[53] I find the trailer signage is clearly in excess of the prescribed size and, in any event, does not apparently relate in any way to Kell’s Garden Centre, the business occupying the Subject Lands [15].

[54] There is no issue that the disputed signage is within the prohibited 400 metre zone or corridor. This has been agreed by the parties.

[55] I find that although s. 38(5)(b) of the Act set out in the Direction [16] is incorrect, nevertheless, such error is not fatal to the Direction or the Authorization to issue the Direction. It is an irregularity. The owner is notified of the offence and the multiple tractor trailer advertising devices at 17 McKay Road East, Barrie, Ontario, L9J 0G1, displayed within 400 metres of the controlled-access highway is contrary to s. 38(2). The owner was also advised of the consequences of failure to comply and possible steps to enforce compliance.

[56] I accept the uncontradicted evidence of Christian Singh regarding the February 2, 2018 meeting, which followed the Direction.

[57] At paragraph 33 of his Affidavit, Mr. Singh deposes: That meeting occurred on February 2, 2018. In attendance personally or by phone, in addition to myself, were: • Eric Gionet (counsel), • Sam Guido (introduced to me as the owner of Kell’s Garden), • Abdul Mian (property owner), • Jamie Hanson (counsel with MTO), • Kris Kernaghan (Head, Corridor Management and Property Office), • Tom Hewitt (Head, Highway Corridor Management Section Central Region), and, • Kaitlyn Greto (Project Engineer EDP). We discussed the trailer signage on the Subject Lands, how they did not comply with the MTO’s Signage Policy and needed to be removed or MTO would take enforcement action [17].

[58] I find the Direction sets out the gravamen of the offence notwithstanding the incorrect section reference. Therefore, I find the Direction is not invalid. The MTO relies upon the correct legislation authority found at s. 38(2)(e) of the Act, confirmed by the agreed facts of the case.

Did the MTO have authority to issue the Direction?

[59] The answer to this question is “yes”.

[60] The respondents submit that the MTO did not adopt a “cascading” approach to directing the Direction to remove as further grounds supporting the invalidity of the Direction.

[61] Respectfully, I disagree.

[62] Section 38(7) gives the Minister discretion upon whom to serve the Direction. In this case, he served the registered owner of the subject lands, Mr. Mian. The provision is not mandatory in that the Minister shall (emphasis mine) direct the Direction first to the owner of the portable sign and then to the sign on whose behalf the portable sign is displayed and, lastly, to the owner of the land.

[63] The applications for a sign permit (see Tab M), clearly identified the registered property owner as Mr. Mian. I find the Minister correctly exercised his discretion to direct the Direction to the registered property owner as he was entitled to do pursuant to s. 38(7).

[64] I find that the Direction was served by registered letter on January 8, 2018 and was deemed to have been received by Mr. Mian on January 10, 2018, pursuant to s. 34(10) of the Act.

[65] Thereafter, the meeting of February 2, 2018 was convened and attended by the respondents’ counsel, Mr. Guido, owner of Kell’s Garden, Mr. Mian, the owner of the subject lands, and the MTO’s representatives.

Did the MTO have authority to issue the Direction?

[66] The answer to this question is “yes”.

[67] For the preceding reasons, I find that MTO issued the Direction to the respondent, A.Q. Mian, the registered owner of the subject lands, who had identified himself as the property owner in his permit applications. The Direction was served by registered letter on him on January 3, 2018 and was deemed to have been received by Mr. Mian pursuant to s. 34(10) of the Act [18]. I find the MTO was authorized to issue the Direction.

Does the court have authority to issue a warrant under s. 112(1) of the Act?

[68] The answer to this question is “yes”.

[69] Section 112 of the Act authorizes the Minister to apply to this court for a warrant if resistance or opposition is encountered in exercising his power under the Act:

112(1) If resistance or opposition is made to the Minister or any person authorized by him or her entering upon land under this Act or exercising any other power in respect of land under this Act, except where such power is or would result in expropriation or injurious affection to which the Expropriations Act applies, the Minister may apply to a judge of the Superior Court of Justice for a warrant in the Form under this Act directing the sheriff for the area in which the land is situate to put down such resistance or opposition or to take such steps as may be necessary to enable the Minister to exercise such power.

(3) On proof of such resistance or opposition and of the intention of the Minister to exercise a power in respect thereof, the judge may issue the warrant.

[70] The respondents submit that there has been no physical resistance or opposition and therefore no need for a warrant to issue. It is submitted that the respondents have legally opposed the position taken by the MTO, which it is entirely entitled to do and, accordingly, the Authorization is invalid.

[71] The Authorization is further attacked on the basis that the incorrect section number (s. 34(11) of the Act) is cited as the MTO’s authority.

[72] Also, the respondents submit that paragraph 3 of the Authorization is vague as it refers to a sign in the singular and without any specificity. Arguably, the Authorization is too vague and therefore invalid.

[73] Although the authority cited is s. 34(11), I find in this case, the Authorization is derived from s. 38(8) of the Act. The authority is consistent with the Authorization to remove signage where the offending signs have not been removed. This process is consistent with the procedure set out in s. 34(11). The Authorization does not fail on this ground.

[74] As for paragraph 3, it is correct that the disputed signage is plural. There are seven portable signs, not one, in contravention of s. 38(2) of the Act. I find that the MTO shall immediately deliver a supplementary Authorization to Devon Varcoe, amending paragraph 3 of the Authorization, dated March 29, 2018, to specifically identify the seven portable signs that require removal [19].

Conclusion: The MTO’s Application

[75] Absolutely clear is that the respondents have not taken any action to remove the trailer signage. Counsel for 252 has repeatedly stated that any action taken by MTO to remove the trailer signage would be met with legal action. I find there is clear resistance or opposition to the exercise of the MTO’s power to remove the trailer signage. I am also satisfied that there is cogent evidence to support the resistance or opposition made to the MTO regarding the removal of the disputed signage. The MTO has proven that the respondents resist and oppose the removal of the disputed signage. The MTO has also satisfactorily proven the intention of the Minister to exercise the power to have the disputed signage removed.

[76] Accordingly, for these reasons, the MTO’s application is hereby granted and it is hereby ordered that a warrant issue directing the Sheriff of the County of Simcoe to put down such resistance or opposition to entitle the MTO staff and/or their authorized agents to remove all trailer signage located at 17 McKay Road East, in the City of Barrie, within 400 metres of the Highway 400 right-of-way, pursuant to s. 112 of the Act.

[77] For these reasons, I find that the respondents are in contravention of s. 38(2)(e) of the Act, and the warrant sought shall issue.

Counter-Application of 252

[78] The applicant, 252, brings a counter-application for an order declaratory of its rights in lieu of an order for an injunction against the Crown pursuant to s. 14 of the Proceedings Against the Crown Act, R.S.O. 1990, c. P27.

[79] 252 has seven tractor trailers parked on the Subject Lands. These trailers contain different commercial advertisements posted along their long-sides facing the northbound traffic of Highway 400.

[80] The MTO has a Corridor-Signage Policy (the Policy), dated March 2010.

[81] The MTO has taken the position that 252’s Trailer Advertising is prohibited by the MTO’s Policy.

[82] 252 has applied for sign permits for each of the trailers in accordance with the MTO’s Policy. The MTO has refused to issue the permits on the basis that the Trailer Advertising does not qualify for sign permits under the MTO’s Policy because, according to the MTO: “Section 9 of the Sign Policy states that 3rd party signage is not permitted next to a Class 1A (400-series) highway.”

[83] 252 takes the position that the MTO has misconstrued, misinterpreted and/or misapplied the MTO’s signage policy because it is s. 6 of the Policy that is applicable to the Trailer Advertising, not s. 9.

[84] 252 submits that MTO’s Policy only prohibits the Trailer Advertising from being placed in the controlled area if the “message” contained in the advertisement, …not promote violence, hatred, or contempt against any identifiable group. Identifiable group means any section of the public distinguished by colour, race, ancestry, religion, ethnic origin, sexual orientation or disability. (referred to herein as the “offensive message”)

[85] 252 submits that the Trailer Advertising contains commercial advertising and does not contain any offensive message.

[86] 252 therefore seeks a declaration that the advertising on the trailers parked on the subject lands is an “advertising device” for the purposes of the Policy and the Act. Further, 252 seeks a declaration that its Trailer Advertising falls within the provisions of s. 6.4 of the MTO’s Policy, that the Trailer Advertising does not contain any message that is contrary to that Policy and that the Policy does not prohibit 252’s Trailer Advertising within the controlled area.

[87] The MTO’s position is that permits were sought by Mr. Mian in October 2016, which were not approved by the MTO. It is submitted that the MTO’s Policy classifies trailers bearing advertising messages according to their use. According to the MTO, the trailer signage in this case is classified as billboard signs, being signs containing messages that are not related to the property on which the signs are located. Such billboard signs are not permitted within the 400 metre controlled area adjacent to controlled-access highways [20].

The MTO’s Corridor Signage Policy, March 2010

[88] The relevant portions of the Policy can be identified as follows:

2 DEFINITIONS AND EXPLANATIONS

Billboard Sign A billboard sign is a sign which contains a message that is not related to the property that the sign is located on. The message on the billboard must not promote violence, hatred, or contempt against any identifiable group. Identifiable group means any section of the public distinguished by colour, race, ancestry, religion, ethnic origin, sexual orientation or disability.

Controlled Area Controlled area shall mean the area within 400 m (one-quarter mile) of any limit of a Provincial Highway. Where a controlled-access highway intersects another highway or road, particularly at intersections where an interchange or other highway facility exists, the 400 m (one-quarter mile) distance shall be measured from a line determined by projecting the normal right-of-way (i.e. fence line or property line) of the controlled-access highway across the intersection, interchange, etc.

Portable Trailer, Mobile, Movable, or Framed Read-O-Graph Signs (Portable Sign) and Inflatable Devices A portable sign means a sign or advertising device that is not permanently attached to the ground, a building or a structure, and that is designed to be moved from place to place.

Sign Sign shall include any sign, notice, advertising device, or any part thereof whether it contains words or not and shall include any device that is used solely to attract attention.

Signs Visible from Highway and within the Controlled Area are subject to Approval of the Ministry Each visible sign placed within the controlled area shall be subject to the approval of the Ministry.

3 GENERAL PRINCIPLES OF THE POLICY

3.1 Legislative Act General The ministry’s legal authority to regulate signing upon, or adjacent to, a provincial highway derives from Sections 34 and 38 of the Public Transportation and Highway Improvement Act (PTHIA). For a King’s Highway: s. 34(2) … For a Controlled-Access Highway: s. 38 (2) …

3.5 Compliance, Enforcement and Municipal Requirements The placing of a sign that contravenes this policy, or the conditions included in the Ministry’s approval, may result in prosecution and/or cancellation of any approvals or permits. The PTHIA provides the Ministry with the authority to issue a notice to a property owner/permit holder to alter and/or remove any non-complying signs. Furthermore, the Ministry may, as provided for under the legislation, legally enter upon private lands to do whatever is necessary to ensure compliance with that direction. Any person who contravenes Sections 34(2), 38(2), or fails to comply with a notice issued under the PTHIA, is guilty of an offence and upon conviction is liable for a fine. In addition to the conditions of a Ministry sign permit, a property owner/permit holder must meet all of the requirements of the local municipality and any other agency having jurisdiction over the placement of signs.

4 APPLICATIONS AND PERMITS

4.1 Onus on the Applicant to Secure Sign Permit The PTHIA places the onus upon the individual to secure a permit from the Ministry of Transportation before displaying a sign within 400 m (0.25 mile) of any limit of a highway other than one sign 0.18 m2 (2 sq. ft.) in size displaying the name or the name and occupation of the owner of the premises to which it is affixed or the name of the premises, and certain signs advertising agricultural products. Each sign shall be subject to the requirements of this policy. Each person, firm or municipality planning to display a sign(s) within the controlled area adjacent to a Provincial Highway, except only those signs which are specifically exempted by law or by this policy, shall be required to obtain a sign permit(s) in all instances where this policy so indicates.

5 GENERAL RESTRICTIONS REGARDING SIGNS The following restrictions regarding signs shall apply to the area over which the Ministry has control by authority of the PTHIA (referred to in this policy as the “controlled area”).

5.1 Signs Subject to Approval of Minister Each sign placed, erected, maintained or altered within the controlled area shall be subject to the approval of the Ministry of Transportation. The only exceptions shall be one sign not more than 0.18 m2 (2 sq. ft.) in size displaying the name or the name and occupation of the owner of the premises on which the sign is located or the name of the premises, and certain signs advertising agricultural products, which signs may be placed by the owner under the provisions of the PTHIA without the approval of the Ministry of Transportation.

5.3 Sign Must not be Placed until Permit is Obtained Installation of a sign within the controlled area must not begin unless a permit or letter of approval is issued by the Delegated Authority. Failure to adhere to the conditions of a sign permit may result in prosecution of the owner or in cancellation of the permit.

6 ADVERTISING OR DECORATIVE DEVICES (Banners, Streamers, Inflatable Devices, Flags, etc.)

6.4 Advertising Messages on Trucks, Trailers Etc. Trucks, trailers etc. bearing an advertising message or business or private identification shall be classified according to use. A sign of this nature must not be placed in the controlled area where the message, if displayed on a standard type sign, would be contrary to this policy (i.e. billboard signs adjacent to a Class 1 or 2 highway). In the event trucks, trailers etc. carrying advertising or other messages are placed adjacent to a highway in contravention of this policy, the Delegated Authority shall discuss the matter with the owner of the advertising device and/or the property owner where the advertising device is located, regarding the removal of the advertising device.

7.14 Portable Signs (Mobile) A portable trailer, ground, mobile, movable, or framed read-o-graph sign is a sign which is movable and which is not permanently attached to the ground, a structure or any other sign or building. Portable signs are subject to the following requirements: f) The sign permit will only be issued to the property owner, not the portable sign company. Any instructions for compliance will be directed to the property owner. j) The sign must be on the property where the business is conducted and only advertise what is related to that property. k) Portable signs are not to be used as billboard signs.

9 Billboards A billboard sign is a sign which contains a message that is not related to the property that the sign is located on. Billboard signs are not permitted within the controlled area adjacent to Class 1 and 2 highways. …

9.1 Message on the Billboard The message on the billboard must not promote violence, hatred, or contempt against any identifiable group. Identifiable group means any section of the public distinguished by colour, race, ancestry, religion, ethnic origin, sexual orientation or disability.

Findings

[89] Section 6.4 of the Policy classifies trailers bearing advertising messages according to their use.

[90] Section 6.4 provides that a sign of this nature must not be placed in the controlled area where the message would be contrary to the policy (ie: billboard signs adjacent to a Class 1 or 2 highway). 252 submits that this provision governs the disputed signage. It is submitted that s. 9 dealing with billboards does not apply with the result that the advertising messages on the portable trailers are not prohibited pursuant to the MTO’s own Policy where the disputed trailer advertising is within the controlled area. 252 submits the advertising signage does not contain offensive language.

[91] Respectfully, I reject 252’s position and interpretation with respect to MTO’s Policy. I find that the Policy is consistent with the provisions of the Act, ss. 34 and 38 relating to roadside controls, particularly in respect of controlled access highways as we have here. Section 38(2)(e) provides that no person shall, except under a permit from the Minister (e) display any sign, notice or advertising device, whether it contains words or not, other than one sign not more than sixty centimetres by thirty centimetres in size displaying the name or the name and occupation of the owner of the premises to which is affixed or the name of such premises within 400 metres of any limit of a controlled access highway.

[92] The parties have agreed that the 7 portable trailers in this case are located within the 400 metres of the prohibited zone or corridor as it relates to the controlled access Highway 400.

[93] 252 submits that the advertising message on the trailers does not consist of the offensive language contemplated by s. 9.1 of the signage standards relating to billboards. 252 submits that we are not dealing with billboard signs at all and, in any event, the advertising message is not offensive in nature, with the result that 252’s trailer advertising within the controlled area is not prohibited. Once again, I disagree and reject this submission.

[94] I find that the trailer signage in this case is classified as billboard signage pursuant to s. 9 of the Policy. This section provides that a billboard sign is a sign which contains a message that is not related to the property that the sign is located on. In our case, the advertising found on the 7 portable trailers is not related to the property on which the signage is located. A review of the applications found at Exhibit M of the Application Record along with photographs at Exhibit Z indicate advertising that is not related to the property on which the signage is located. The signage relates to a variety of enterprises not related to the subject property on which the signage is located.

[95] Further, I find the advertising signage to be billboard signage, which is also not permitted within the controlled area adjacent to Class1 and 2 highways, as set out in s. 9 of the Policy. Such billboard signage is not permitted within the 400 metres controlled area adjacent to controlled-access highways, such as Highway 400.

[96] I find that notwithstanding the advertising messages on the portable trailers do not contain “offensive” language contemplated by s. 9.1 of the Policy, the billboard signage on the portable trailers neither complies with the provisions of the Act, nor s. 6.4 or 9 of the Policy standards. The signage is not related to the property on which the sign is located. The signage is not permitted within the 400 m controlled area adjacent to controlled access Highway 400.

Conclusion Regarding the Counter-Application of 252

[97] For these reasons, 252’s counter-application is hereby dismissed.

Costs

[98] The parties agree that the issue of costs shall be determined by way of written submissions. Within 14 days of these Reasons, the MTO shall deliver its costs submissions consisting of a costs outline and summary position on costs not to exceed 2 pages, a draft bill of costs and any supporting authorities. Those written submissions shall be delivered to counsel for the respondents and filed with my judicial assistant at Barrie.

[99] Thereafter, the respondents shall have 10 days to respond where the respondents shall serve and file similar responding materials. If required, the MTO shall serve and file any reply materials within 5 days thereafter.

Footnotes

[1] Affidavit of Christian Singh, affirmed April 4, 2018 (“Singh Affidavit”) at paras. 6, 20, 22, 25 and 33, and Exhibits A (land titles search), M1 to M7 (permit applications), N (corporation profile report) and P (letter from counsel). Application Record, Tabs 2, A, M, N and P. [2] Singh Affidavit at paras. 5, 13 and 37, and Exhibits F (photographs), M1 to M7 (permit applications) and Z (photographs). Application Record, Tabs 2, F, M and Z. [3] Singh Affidavit at paras. 8, 9 and 11, and Exhibits B (letter) and C (email). Application Record, Tabs 2, B and C. [4] Singh Affidavit at paras. 12, 14 to 17, and Exhibits G (email), H (email), I (email), and J (email chain). Application Record, Tabs 2, G. H, I and J. [5] Singh Affidavit at para. 20, and Exhibits M1 to M7 (permit applications). Application Record, Tabs 2 and M. [6] Singh Affidavit at para. 23, and Exhibit O (letter). Application Record, Tabs 2 and O. [7] Singh Affidavit at para. 25, and Exhibit P (letter). Application Record, Tabs 2 and P. [8] Singh Affidavit at para. 26, and Exhibit Q (Notice). Application Record, Tabs 2 and Q. [9] Singh Affidavit at paras. 27 and 28, and Exhibits R (email chain) and S (letter). Application Record, Tabs 2, R and S. [10] Singh Affidavit at para. 29, and Exhibit T (Direction). Application Record, Tabs 2 and T. [11] Singh Affidavit at para. 31, and Exhibits V (letter). Application Record, Tabs 2 and V. [12] Singh Affidavit at paras. 32 and 33, and Exhibit W (email chain). Application Record, Tabs 2 and W. [13] Singh Affidavit at para. 34 and Exhibit X (email chain). Application Record Tabs 2 and X. [14] Singh Affidavit at paras. 36, 37, 38 and 39, and Exhibits Z and AA. Application Record, Tabs 2, Z and AA. [15] Exhibits F (photographs), M1 to M7 (permit applications) and Z (photographs). Application Record, Tabs F, M and Z. [16] Application Record, Tab T. [17] Singh Affidavit, para. 33, page 5. Application Record, Tab 2 [18] Singh Affidavit at para. 29, Exhibit T (Direction). Application Record, Tabs 2 and T. [19] Singh Affidavit at para.38, Exhibit AA (Authorization). Application Record, Tabs A and AA. [20] Singh Affidavit at paras. 18, 20 and 23, and Exhibits K (MTO Signage Policy) and M1 to M7 (permit applications). Application Record, Tabs 2, K and M.

G.P. DiTomaso J. Released: November 26, 2018