COURT FILE NO.: CV-15-000152-00
DATE: November 14, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BELLEVILLE SIGN RENTALS INC., 2309236 ONTARIO INC. (o/a Zodiac & Magnetsigns), MIKE STEWART (c.o.b. as Impact Signs & Flag Rentals), and ROBERT HOWE (c.o.b. as Quinte Signs)
– and –
THE CORPORATION OF THE CITY OF BELLEVILLE
Christopher Robertson, for the Applicants
Jennifer Savini and Christy Nurse, for the Respondent
HEARD: August 1, 2019
Additional written submissions filed August 15 and 23, 2019
HURLEY, J.
REASONS FOR DECISION
I. Nature of the application
[1] The applicants lease advertising signs. In January 2017, the respondent The Corporation of the City of Belleville (“Belleville”) amended the municipality’s sign by-law to eliminate “off-premise” portable signs. These were temporary movable signs which contained advertising that was not directly connected to the location where they were placed. They seek the following declaratory relief in this application:
i. That the amendment infringes the applicants’ rights under s. 2(b) of the Charter of Rights, is not saved by s.1 and is of no force and effect pursuant to s. 52 of the Constitution Act, 1982.
ii. That the amendment is ultra vires and/or exceeds the authority of Belleville under the Municipal Act, 2001, S. O. 2001, c. 25 and should be quashed.
iii. That if the amendment is not quashed, or is found to be constitutionally valid, the applicants are entitled to rely upon s. 34(9) of the Planning Act, R. S. O. 1990, c. P. 13 as a defence to any future action by Belleville to enforce the sign by-law as amended.
II. Overview
[2] Belleville enacted by-law 2006-55 entitled “A by-law to regulate signs and other advertising devices in the City of Belleville” in March 2006. This by-law permitted on and off-premise portable signs upon payment of a prescribed fee.
[3] The relevant sections of the by-law are:
SECTION 1 – DEFINITIONS
(21) “Off-Premise Sign” means any sign advertising a business, person, activity, good, product or service that is not principally related to, or available at the location or on the lot where the sign is located, and/or which generally directs people to locations different from the location where the sign is located.
(22) “On-Premise Sign” means any sign advertising a business, person, activity, good, product or service that is principally available at the premises or on the lot where the sign is located.
(26) “Portable Sign” means a temporary sign which is specifically designed or intended to be readily moved from one location to another and which does not rely on a building or fixed foundation for its structural support, and which for the purposes of this By-law includes any sign mounted on a trailer, a banner sign, and an inflatable sign, but does not include a sandwich board sign as defined herein.
(35) “Sign” means any advertising device or display upon which there is printed, projected or attached any announcement, declaration, or insignia, used for direction, information, identification, advertisement, business promotion or promotion of products, or availability of services, whether intended to be permanent or temporarily capable of being readily moved or relocated, and includes an inflatable model placed on a lot for the purpose of advertising, and also includes banners and vehicles used strictly as advertising devices, and shall include the sign structure and the sign face, but shall not include flags or other embellishments to a lot or building that are strictly for designer architectural purposes.
2.3 Effect of By-law
No person shall erect, display, alter, repair or maintain, or cause the same to be done to, any sign or other advertising device within the corporate limits of the City of Belleville that is in contravention of any provision of this By-Law.
2.4 Prohibited Signs
No person shall erect, place or display any sign or cause the same to be done in respect to any of the following:
i) Signs that contravene the requirements of this By-Law, the Ontario Building Code or any other applicable regulation, as amended from time to time
2.10 Existing Signs
(1) This By-Law shall not apply so as to require any sign that was legally erected before the date this By-Law comes into full force and effect, to be made to comply with this By-Law so long as the sign is not altered.
3.3 Portable Signs
(6) Off-Premise Portable Signs:
No off-premise Portable sign shall be erected without the written authorization of the owner of the lot on which the sign is to be erected being provided to the Chief Building Official.
[4] There were also restrictions imposed on the number of portable signs per lot, the rental period, their size and height, and setbacks in relation to their proximity to lot lines, public streets and sidewalks.
[5] In order to use an off-premise portable sign, a party would apply for a permit and pay a fee based on the length of time the sign would be displayed. According to Ted Marecak, the Chief Building Official for Belleville, the municipality historically issued about 2,000 portable sign permits annually, of which about 50% were for off-premise signs. Most of these were renewed on a monthly basis. He deposed that this was an administrative burden for Belleville and the monitoring and removal of such signs represented “a significant strain on limited resources” because they were often in poor condition and remained in place after the expiration of the permit period. He acknowledged in cross-examination that he was unaware of any prosecutions for breach of the sign by-law.
[6] Over time Belleville received complaints from citizens as the portable signs proliferated. Municipal staff identified two principal concerns – aesthetic appeal and traffic safety. In 2016, a local firm, RFA Planning Consultant Inc. (“RFA Planning”) submitted a report which included an assessment of Belleville’s sign by-law and those of surrounding municipalities. It recommended that off-premise portable signs be prohibited, noting that most municipalities in Ontario did so.[^1] It also proposed other restrictions on portable signs, all aimed at reducing the number of them.
[7] This report was reviewed by municipal staff and the Planning Advisory Committee. Following a public meeting in early September 2018, the Committee recommended to Belleville Council that the sign by-law be amended to eliminate off-premise portable signs.
[8] Mr. Marecak prepared a report that was presented to the Council at their public meeting on September 24, 2018. He wrote, in part:
“The City has received complaints about the number of portable signs throughout the City. Portable signs are generally intended for short term advertising, however with the provisions of the current sign by-law many of the portable signs in the City, both on and off-premise have become permanent year-round advertising fixtures.
A reduction in the number of portable signs permitted in the City would have numerous benefits including:
1.Improve the aesthetic appearance of the city streetscapes;
2.Reduce the administration process for portable sign permits;
3.Reduce the number of complaints regarding portable signs;
Given that portable signs are intended to provide short term advertising for businesses and that approximately 50% of the 200 portable signs displayed in the city are off-premise signs, eliminating the permission for off-premise portable signs should achieve the goals of improving the aesthetic appearance of the City streetscapes, reducing the portable sign permit processing burden and reducing the number of complaints regarding portable signs.”
[9] He concluded:
“In order to reduce the accumulated street clutter and improve the aesthetics of the City streetscapes it is proposed to amend the sign by-law to eliminate the permission for off-premise portable signs.”
[10] Attached as an appendix to his report were several photographs of off-premise portable signs located adjacent to major city streets.
[11] The proposed amendment was included in the agenda for the public meeting which was published on the Belleville website the week before. After a discussion about it on September 24, Council passed the following resolution which was incorporated in the minutes under the heading “Sign By-law Amendment – Portable Signs”:
“THAT an amendment to By-law Number 2006- 55 (Sign By-law) to eliminate off-premises portable signs be referred to staff for public consultation.”
[12] The minutes were published on Belleville’s website. Scott Reynolds, a principal of the applicant Belleville Sign Rentals Inc. attended this Council meeting. He had learned of it from the owner of another local sign company whose name he could not recall at his cross-examination.
[13] The staff decided that the public consultation would consist of an online survey because this was considered the most effective means of soliciting input from Belleville residents. In addition to promoting the survey on the municipal website and social media, it was also reported in a local newspaper, the Belleville Intelligencer. Any resident who did not have computer access could request a copy of the survey from Belleville or pick one up at City Hall.
[14] The survey ran for one month, starting on November 21, 2018 and ending December 21. 810 people participated, of which about 85% self-identified as Belleville residents. About 21% stated that they owned businesses in Belleville. A majority believed there were too many portable signs in Belleville (58%) and that off- premise portable signs should not be allowed (51.68%).[^2]
[15] Those who responded to the survey could also make written comments. 472 did, most complaining about the appearance of the signs and that they constituted a traffic hazard. Michelle Nelson, the president of the applicant 2309236 Ontario Inc. and Mike Stewart, the owner of the applicant Impact Signs & Flag Rentals, participated in the survey.
[16] Mr. Marecak prepared another report which was presented to Belleville Council at their public meeting on January 14, 2019. In this report, he summarized the results of the survey. He again recommended an amendment that would eliminate off-premise portable signs and included it in the by-laws section of the Council agenda. The agenda for this meeting had been published on the Belleville website the previous week.
[17] At the meeting, the Council passed the proposed amendment which deleted s. 3.3(6) of by-law 2006-55 and replaced it with by-law 2019-20 which stated: “A portable sign shall not be erected or displayed as an off-premise sign.”
[18] Belleville did not directly contact any representative of the applicants during the public consultation process. At some point after the September 24, 2018 Council meeting, Michelle Nelson spoke to Samantha Shortt, a Property Standards and Municipal By-law Enforcement Officer with Belleville about the proposed amendment. Ms. Shortt informed her that she was not involved in the review process and that Ms. Nelson would have to approach Council directly with any concerns about it.
[19] At her cross-examination, Ms. Nelson testified:
Q. But you did participate in the sign survey, so you knew that it was sort of on Council’s agenda and this was something they were looking at during that period of time.
A. Yes.
Q. As a business owner then, that’s directly impacted that, did it not strike you as prudent to sort of follow along with Council’s proceedings or to contact any councillors after you completed, around the time that you completed the survey?
A. Right. So what we were told by – or what I was told anyways – that we would have input and that the, the City, where the bylaw enforcement people would be, would get our information, so I was under the understanding that we would be called in and talked to and come up with an amicable solution that worked for everybody.
Q. When you say you were told, told by who?
A. Like one of the bylaw officers in a conversation.
[20] After identifying this person as Ms. Shortt, she said:
Q. Okay. And do you recall when that conversation happened?
A. It was just during all this, and even when we’ve talked to the bylaw enforcement, because we’ve, we’ve had a good relationship, that, just that with anything, that they would talk to us before any bylaws would be amended and, get our input, so that’s who our, my contact would be.
Q. But there was no reaching out to the department directly to schedule those, to kind of be proactive and set up a meeting to contact sort of more senior management in the bylaw enforcement division to try to schedule a meeting on behalf of the sign owners, nothing like that?
A. No. And I hadn’t.
[21] The other representatives of the applicants did not have any direct contact with an employee of Belleville or any Councillor but deposed that they, like Ms. Nelson, were under the belief that they would be consulted before the by-law was amended.
[22] Two days after the by-law amendment was passed, Belleville notified the applicants in writing that no renewal permits for off-premise portable signs would be issued and that once the existing permits expired the signs would have to be removed, failing which Belleville would take enforcement proceedings. When signs were not removed, orders to comply were issued and Belleville later removed some but the specific number was not identified in the record before me.
[23] All of the applicants will lose revenue as a result of the by-law amendment but the extent of that loss is currently unknown. Two have leased more on-premise portable signs. Attached as exhibits to some of the affidavits were correspondence from third parties and a petition signed by 549 people that favoured the restoration of off-premise portable signs.
[24] After the passage of the by-law amendment, the applicants requested to make deputations to Belleville Council but were advised by the City Clerk, Matthew MacDonald, that these were not permitted. He recommended that they send a letter to the Mayor and Council with respect to their position which they did in January 2019 followed by correspondence from their lawyers in February requesting that Council reconsider the by-law amendment. This application was commenced in April.
[25] In support of their bias allegation, the applicants filed evidence about advertising connected to Mayor Panciuk and Councillor Williams and on Belleville buses. The Mayor parks a vehicle in the spot reserved for him at City Hall that has “Boston Pizza” decals on it. Councillor Williams holds a management position with a local hotel chain and the applicant Belleville Sign Rentals Inc. leased a portable sign to one of those hotels in May 2019 about a liquidation sale of golf equipment at it. There is signage on city buses with respect to local businesses.
III. Positions of the Parties
[26] The applicants’ main argument is that the by-law amendment infringes their right to freedom of expression under s. 2(b) of the Charter of Rights and is not saved by s.1. The Ontario Court of Appeal and Supreme Court of Canada have ruled that sign advertising is a protected form of speech. They submit that Belleville cannot satisfy the legal test to justify the infringement. As stated in the leading case of R v. Oakes, 1986 CanLII 46(SCC), this requires Belleville to first establish a pressing and substantial objective for the law. The applicants acknowledge that aesthetic concerns and traffic safety can fulfil this legal criterion but, in this particular case, Belleville has not adduced sufficient evidence that either applies. Even if Belleville can meet this first hurdle, the by-law amendment is not reasonable and demonstrably justified. They contend that there was no meaningful public consultation; reasonable alternatives to a complete prohibition of off-premise signs were not considered; the effect of it is to regulate speech, not the location of signs; and the amendment will not accomplish the purported goal of reducing the amount of portable signs in the municipality.
[27] The ultra vires argument is based on alleged procedural unfairness, conflict between the existing by-law and the amendment and what is identified as “palpable and reasonable apprehension of bias”. The applicants assert that the public consultation process was seriously flawed and Belleville had a duty to consult the applicants before enacting the by-law amendment. They submit that there is now such uncertainty over what off-premise signs are legally permitted that the amendment should be found “void for contradiction and ambiguity”. The advertising linked to Mayor Panciuk and Councillor Williams and on city buses ostensibly constituted a financial advantage that, in turn, created a conflict of interest which taints the by-law amendment to such an extent that it should be quashed.
[28] The final ground differs from the first two in that the remedy is not a declaration that the by-law amendment is of no force and effect or should be quashed but rather a ruling that s. 34(9) of the Planning Act can be relied upon by the applicants as a defence to any action taken by Belleville to enforce the by-law amendment. According to the applicants, this section would apply to any off-premise portable sign that was located on a property as of the date the by-law amendment was enacted. Alternatively, s. 2.10 of by-law 2006-55 continues to apply to off-premise portable signs that were in place before by-law 2019-20 was passed.
[29] In response to the constitutional argument, Belleville concedes that the by-law amendment contravenes s. 2(b) of the Charter of Rights but it should be upheld as a reasonable limit prescribed by law under s. 1. There was persuasive evidence that off-premise portable signs constituted “visual clutter” and a distraction to motorists, both of which have been held to be valid pressing and substantial concerns. In evaluating the means chosen by Belleville to address these issues, I should bear in mind that it is a deferential standard which should be applied. It is sufficient that Belleville establish that its choice fell within a range of reasonable alternatives; it does not have to be the “most reasonable” one. In this case, the public consultation process was extensive. Belleville could have enacted an even more restrictive amendment in relation to portable signs but instead chose only to limit their location. Commercial advertising, although a protected form of expression, is below that of artistic, political and social commentary. There are still many other forms of signage permitted by the by-law, including off-premise signs. Contrary to the applicants’ claim, the amendment is about the physical structure and location of signs, not the content of their message.
[30] Belleville can pass by-laws with respect to signs under the Municipal Act, 2001. There was no legal duty on it to consult the applicants before enacting the by-law amendment. The public consultation process that occurred in this case was more than sufficient. Belleville at all times acted in good faith and for a proper purpose. The amendment followed a lengthy period of consideration which included expert advice from RFA Planning, review by the Planning Advisory Committee, a public survey and two Council meetings. A by-law passed in good faith cannot be quashed because of the purported unreasonableness of it. There is a very high burden of proof in establishing bias and none of the allegations meet this threshold legal requirement.
[31] Section 34(9) of the Planning Act applies to zoning, not sign by-laws. Even if a portable structure did fall within a legal non-conforming use exception, there must still be compliance with other restrictions imposed by the sign by-law. With respect to the alternative argument of the applicants, Belleville submits that s. 2.10 of by-law 2006-55 does not apply to the amendment.
IV. Analysis
Issue One: The Application of the [Charter of Rights](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
[32] Under s. 10(2) of the Municipal Act, 2001, a municipality may pass by-laws with respect to “structures, including fences and signs”. A by-law which restricts the use of a sign is an infringement of s. 2(b) of the Charter of Rights, whether that be the content of the sign, the location of it or the type and number of the signs permitted within the municipality[^3].
[33] Once an infringement is established, the onus shifts to the municipality to demonstrate that the by-law is a reasonable limit that can be demonstrably justified under s. 1 of the Charter of Rights. Doherty, J., A. recently summarized the proper legal analysis in Langenfeld v. Toronto Police Services Board, 2019 ONCA 716 at paras. 76 – 77:
Professor Hogg, in Constitutional Law of Canada, at para. 38.8, identifies the four criteria that must be satisfied before a claim limiting a constitutional right will pass s. 1 scrutiny. They are:
• the objective of the law must be sufficiently important to justify limiting a Charter right [a pressing goal];
• the law must be rationally connected to the objective of the law [a rational connection];
• the law must impair the constitutional right no more than is necessary to accomplish the objective [minimum impairment]; and
• the law must not have a disproportionately severe effect on the constitutional rights of the persons affected by it [proportionality].
The first criterion addresses the objective of the law that limits the right. The other three criteria examine the means used to achieve the objective and, broadly speaking, balance the societal interest served by the law against the limits imposed by the law on the individual’s constitutional rights. That balance requires the state to show that the limit is “reasonable” and “demonstrably justified in a free and democratic society”: R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, at pp. 138-39.
a. Pressing goal
[34] Aesthetic concerns, traffic safety or preservation of the particular character or heritage of the municipality can meet the requirement of a “pressing and substantial” objective when it comes to a sign by-law.[^4]
[35] I find that Belleville has shown that the by-law amendment addressed two pressing and substantial objectives- aesthetic concerns and traffic safety. The reports of RFA Planning and Mr. Marecak focused primarily on the former, identifying the “visual clutter” that resulted from the proliferation of off-premise portable signs. The latter is supported by the results of the online survey. I can also, as R v. Guignard, 2002 SCC 14 directs, apply common sense and inferential reasoning.[^5] The photographs that were attached to Mr. Marecak’s first report to Council are a cogent illustration of the particular problems posed by off-premise portable signs. It stands to reason that such signs would be predominantly located adjacent to major city streets or other high-traffic areas and their accretion would not just create an unattractive landscape but also increase the risk of driver distraction.
b. The rational connection
[36] The applicants contend that the by-law amendment is directed at the contents of the signs. I am satisfied, based on the evidence, that this is not the case. Rather, Belleville’s motivation for scrutiny of the existing sign by- law was based on complaints from citizens about the appearance, location and number of off-premise portable signs together with the administrative cost associated with them. RFA Planning’s report supported the legitimacy of these concerns as did the public consultation process.
[37] The objective of the by-law amendment was to specifically reduce the number of off-premise portable signs. The applicants submit that Belleville has failed to establish a rational connection to this objective because there is no evidence that the overall amount of portable signs will decrease. This is due, in part, to Belleville’s decision not to implement the other recommendations of RFA Planning that were aimed at on-premise portable signs. Therefore, the aesthetic concerns will remain the same because on-premise portable signs will now proliferate.
[38] Given the historical proportion of off-premise portable signs, a prohibition of them will clearly reduce the number of portable signs in the municipality. Further, evidence which Belleville presented – off-premise portable signs adjacent to major city streets – highlights the aesthetic concerns and traffic safety issues these particular types of signs raised. The applicants adduced some evidence that they have leased more on- premise portable signs since the passage of the by-law amendment but the number has not been substantial. I find that Belleville has shown the requisite rational connection.
c. Minimal impairment
[39] As noted by Doherty, J. A in Langenfeld, this is often the determining factor in the s. 1 analysis. The prohibition of signs, including portable signs, in a municipality can be constitutional or unconstitutional. It is a fact driven assessment.[^6] But I also bear in mind that I should pay deference to the decisions of elected representatives such as municipal councils. I should not intervene and set aside their decision because I “can think of a better, less intrusive way to manage the problem”.[^7] Rather, do the restrictions imposed as a result of the by-law fall within a range of reasonable alternatives?[^8]
[40] At his cross-examination, Mr. Marecak acknowledged that there were restrictions (e.g. increasing the minimum distance between signs, limiting the number of signs on a specific property) that could have been implemented to reduce the number of off-premise portable signs. Even without that concession, I would reach the same conclusion. There will almost always be an effectual substitute for a complete embargo.
[41] I find that Belleville acted responsibly and in good faith when public complaints were received about the number of portable signs. It engaged in a public consultation process. Staff reports were prepared that fairly set out not just the public’s concerns but also addressed financial issues arising out of the administration of the existing by-law. A report was obtained from a local planner. There were three public meetings. The Council deferred consideration of the proposed by-law amendment pending the receipt of additional public input. In the end, despite the planning consultant’s recommendations for additional restrictions of portable signs, Belleville amended the existing sign by-law in a single respect.
[42] The applicants are sharply critical of the public consultation process. They point out that it is not clear if the RFA Planning report was considered by the Council; there were serious flaws with the online survey; and Belleville failed to contact them as it should have. There is no merit in the first complaint as the report recommended more, not less, restrictions on portable signs. There might have been other ways to obtain public input but an online survey, promoted by the municipality and reported in the local media, was a reasonable and cost-effective method of doing so. Because the by-law amendment affected a small group of business owners, it would have been prudent for Belleville to have specifically consulted them but balanced against this was the applicants’ knowledge that the municipality was considering a revision of the sign by-law. Since some of them were involved during the public consultation process, they could have just as easily contacted Belleville to inform staff or the Council of their concerns.
[43] The number of off-premise portable signs could have been reduced by additional restrictions but who is in the best position to determine if that was the appropriate solution: the elected representatives of the municipality whose decision was informed by staff advice and expert opinion and followed public consultation or a judge conducting an ex post facto legal analysis? Although more restrictions will result in less signs, does it necessarily follow that there is a corresponding reduction in aesthetic and traffic safety concerns? To be a worthwhile means of communicating a message, it is likely that the off-premise portable sign would have to be in a high-traffic area; the reduction in their number may alleviate the aesthetic concern but the issue of driver distraction remains. There would still be the cost of administering, monitoring and enforcing compliance with the by-law which is more difficult (and expensive) with portable signs. Belleville left the rest of the sign by-law untouched so other types of both on and off-premise signs can still be used. There is also the practical reality of more rigorous regulation – it could be just as consequential as a complete prohibition. The necessary balancing of interests and rights is a difficult task. I find that, in circumstances, the by-law amendment meets the minimal impairment test.
d. Proportionality
[44] Although the by-law might satisfy the first three criteria, it can still be declared unconstitutional because of its disproportionately severe effect on freedom of expression. Belleville submitted that commercial advertising falls below that of political or social expression and that I should evaluate the applicants’ s.1 claim within this context. However, the applicants’ evidence establishes that they leased off-premise portable signs to people who used them for social messages. Moreover, the by-law amendment would also apply to everyone who wants to use a portable sign so it would extend to all types of expression.
[45] In Guignard, Lebel, J. noted that “signs, which have been used for centuries to communicate political, artistic or economic information, sometimes convey forceful messages. Signs, and various forms, are thus a public, accessible and effective form of expressive activity for anyone who cannot undertake media campaigns.”[^9] But he also observed that, for the inhabitant of the municipality, a “pleasant environment” is important.[^10] Distracted driving is now a much greater public concern than in the past. There has also been the rise in social media as a common platform for the expression of messages across the commercial, social and political spectrum at no or little financial cost. As I stated above, Belleville still permits many other types of signs. The by-law amendment limits freedom of expression but only to a modest degree and reasonably addresses what people viewed as serious concerns which they expected the municipality to do something about.
[46] In conclusion, I find that the by-law amendment is a reasonable limit that is demonstrably justified under s. 1 of the Charter of Rights.
Issue Two: The Ultra Vires/Apprehension of Bias Claim
[47] Belleville had the statutory authority to enact the by-law amendment. A municipal by-law can be quashed for illegality but if it is passed in good faith it cannot be quashed nor is it open to judicial review in whole or in part because of the unreasonableness or supposed unreasonableness of it: s. 272 of the Municipal Act, 2001. The statute does not require any public notice or consultation other than what is established by the municipality’s own policies and procedures. It can pass by-laws within its authority on whatever information it chooses.[^11]
[48] The onus of establishing bad faith rests on the person seeking to quash the by-law. Bad faith can include “arbitrary or unfair conduct and the exercise of power to serve private purposes at the expense of the public interest”. [^12]
[49] The party alleging bias must establish that there was “a prejudgment of the matter to the extent that any representations at variance with the view, which has been adopted, would be futile”.[^13]
[50] Belleville acted in good faith. It followed the adopted policies and procedures with respect to public notice and consultation. There is no merit to the allegation of bias – the Mayor’s use of a parking spot reserved for him at City Hall, the lawful use of a portable sign at a hotel in which Councillor Williams may or may not have a financial interest and advertising on city buses do not support such a claim and there was absolutely no evidence that either of them or Belleville had anything other than the public interest in mind in passing the by-law amendment.
[51] If, as the applicants assert, there is a conflict between by-laws 2006-55 and 2019-20 over what off-premise signs are legally permitted in Belleville, the remedy is not an order quashing by-law 2019-20. Should a dispute arise about a particular sign, a court would interpret the by-laws and make a ruling based on the evidentiary record before it.
Issue Three: The application of s. 34(9) of the Planning Act
[52] It states:
No by-law passed under this section applies,
(a) to prevent the use of any land, building or structure for any purpose prohibited by the by-law if such land, building or structure was lawfully used for such purpose on the day of the passing of the by-law, so long as it continues to be used for that purpose; or
(b) to prevent the erection or use for a purpose prohibited by the by-law of any building or structure for which a permit has been issued under subsection 8(1) of the Building Code Act, 1992, prior to the day of the passing of the by-law, so long as the building or structure when erected is used and continues to be used for the purpose for which it was erected and provided the permit has not been revoked under subsection 8(10) of that Act.
[53] Belleville contends that this provision applies only to zoning by-laws. While that may be correct, I find it unnecessary to make a decision on this issue. Any claim of a legal non-conforming use is fact driven. Renewal permits have not been issued but there is no evidence before me about what signs were removed, under what circumstances that occurred or if there are still signs in place that could be the subject of enforcement proceedings in the future.
Disposition
[54] The application is dismissed. If the parties cannot agree on costs, Belleville shall deliver its written submissions not to exceed three pages in length exclusive of a costs outline, written offers to settle and case law within 20 days of the date of the release of this decision. The respondents have 10 days in which to deliver their reply submissions of the same length.
Hurley, J.
Released: November 14, 2019
Belleville Sign Rentals Inc. et al. v. The Corporation of the City of Belleville, 2019 ONSC 6579
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BELLEVILLE SIGN RENTALS INC., 2309236 ONTARIO INC. (o/a Zodiac & Magnetsigns), MIKE STEWART (c.o.b. as Impact Signs & Flag Rentals), and ROBERT HOWE (c.o.b. as Quinte Signs) Plaintiffs
– and –
THE CORPORATION OF THE CITY OF BELLEVILLE
Defendant
REASONS FOR decision
Hurley, J.
Released: November 14, 2019
[^1]: The report stated that they were not permitted in the neighbouring municipalities of Quinte West, Greater Napanee and Cobourg but were allowed in Kingston. I was advised at the hearing that Kingston now prohibits them.
[^2]: The specific questions were “What is your opinion regarding the number of portable signs that are currently displayed in the City of Belleville?” and “Should the City of Belleville sign by-law continue to allow portable signs to advertise goods, products or services NOT available at the location where the sign is displayed?”
[^3]: There is a plethora of case law. The leading appellate decisions in Ontario are: Corporation of the City of Stoney Creek v. Ad Vantage Signs Ltd et al, 1997 CanLII 591 (ON CA ); Canadian Mobile Sign Association et al v. The Corporation of the City of Burlington et al, 1997 CanLII 4453 (ON CA), application for leave to appeal to the SCC dismissed: S. C. C. File No. 26277; Township of Nichol v. McCarthy Signs Co. Ltd., 1997 CanLII 1680 (ON CA): Vann Media Ltd.. V. Oakville (Town Of), 2002 CanLII 44984 (ON CA); Vann Media Group v. Oakville (Town), 2008 ONCA 752, appeal allowed in part: 2003 SCC 65; Ontario (Ministry of Transportation) v. Miracle, 2005 CanLII 2305 (ON CA); Ramsden v. Peterborough (City), 1993 CanLII 60 (SCC); and R v Guignard, 2002 SCC 14.
[^4]: Aesthetic issues have been described as “urban blight” and “visual clutter”. Traffic safety relates primarily to driver distraction. Preservation of a special character or heritage is different from aesthetic appeal – see City of Stoney Creek at p. 12.
[^5]: Para. 28
[^6]: See City of Stoney Creek at p. 12.
[^7]: Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62 at para. 94.
[^8]: Vann Media Group Inc.at para. 36 and Ontario (Ministry of Transportation) v. Miracle at paras. 57-58.
[^9]: Para. 25
[^10]: Para. 29
[^11]: Seguin (Township) v. Hamer, 2014 ONCA 108 at para. 7.
[^12]: Equity Waste Management of Canada Corp. v. Halton Hills (Town), 1997, 35 O. R [3rd] 321 (Ont. C.A.) at p. 340.
[^13]: Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), 1990 CanLII 31 [SCC) at para. 94.