Ad-Blocked: Ontario Court Upholds City’s Decision to Reject Controversial Bus Advertisement

This judicial review application was brought by the Christian Heritage Party of Canada (CHP) after the City of Hamilton rejected a proposed bus billboard which advertised CHP’s belief that there are only two biological genders. The court upheld the City’s decision, finding that it had appropriately balanced CHP’s Charter right to freedom of speech, with the City’s own objective to provide a safe and welcoming transit environment for all individuals, including trans and gender-non conforming people.

Administrative law – Decisions reviewed – Municipal councils – Judicial review – Procedural requirements and fairness – Standard of review – Reasonableness – Human rights complaints – Discrimination – Gender

Christian Heritage Party of Canada v. Hamilton (City), [2024] O.J. No. 5095, Ontario Superior Court of Justice, November 12, 2024, N.L. Backhouse, J.K. Trimble and G. Mew JJ.

This judicial review application was brought by the Christian Heritage Party of Canada (CHP) and its Hamilton-Mountain Electoral District Association (collectively, the “Applicants”), challenging the City of Hamilton’s (the “City”) decision to reject CHP’s proposed billboard bus advertisement. The CHP claimed that the decision to reject the advertisement violated their freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms. The Ontario Divisional Court, in a decision delivered by Justice Trimble on November 12, 2024, ultimately dismissed the application, finding that the City’s decision was reasonable and procedurally fair.

Background and Facts

In January 2023, CHP sought approval from OUTFRONT Media (the City’s third-party advertising contractor) for an advertisement to run on the City’s public transit system. The ad featured the statement: “Woman: An Adult Female. Bringing Respect for Life and Truth to Canadian Politics. The Christian Heritage Party of Canada,” alongside a photograph of a smiling young woman, with a link to CHP’s website. The intention behind the advertisement was described on the linked website as being to emphasize CHP’s religious and political views on gender, including the belief in only two biological genders, and protecting children from what the CHP referred to as the “LGBTQ gender agenda.”

Initially, OUTFRONT Media declined the advertisement, stating it did not conform to the Advertisement Standards Code, without providing further explanation. When CHP sought clarification, OUTFRONT maintained that the decision stood but did not provide detailed reasoning. CHP escalated the matter to the City, which began its own review process.

The City, after consultation and review, rejected the ad on July 6, 2023, explaining that it could negatively impact the City’s statutory objective of providing a safe and welcoming environment for all transit users, especially transgender and non-gender-conforming individuals. The City based its decision on consultation with legal experts, the LGBTQ Advisory Committee, and the Hamilton Police, citing concerns about potential harm, such as encouraging hateful conduct towards the transgender community. The CHP argued that this decision infringed upon their Charter rights and sought judicial review.

Issues

There were four issues in the Application for Judicial Review:

1. Procedural Fairness: Did the City’s process in rejecting the advertisement meet the standards of procedural fairness as set out in Baker v. Canada?
2. Reasonableness: Was the City’s decision to reject the advertisement reasonable under the framework established by Vavilov and Doré?
3. Bias: Did the City demonstrate bias against CHP in its handling of the advertisement?
4. Remedy: If the City’s decision was procedurally unfair or unreasonable, what would be the appropriate remedy?

Analysis

Procedural Fairness

The court considered whether the City followed a fair process when rejecting the advertisement, using the factors from Baker v. Canada to evaluate fairness. CHP argued that the City made its decision hastily and opaquely, the decision infringed CHP’s important right to freedom of expression, especially political expression, did not provide alternative wording for the ad, and was biased in its decision-making.

The court rejected CHP’s arguments, noting that the decision was an administrative one involving weighing significant public interests, particularly the protection of transgender and non-gender-conforming transit users. The court also considered that the City has an obligation to run a public transit system with advertising on that system that meets all legal requirements, policies and procedures (including the requirements of the Charter, the Criminal Code, federal and provincial human rights legislation, the Canadian Code of Advertising Standards, and the City’s Equity and Inclusion Policy, and Protocol for Gender Identity and Gender Expression). The court noted that the City had followed a reasonable process, consulting various stakeholders and offering CHP the opportunity to engage in dialogue. CHP had a legitimate opportunity to voice its concerns, and its input was considered before the City reached a decision.

The court concluded that the process met the necessary standards of fairness given the context.

Reasonableness of the Decision

Under the framework from Doré and Vavilov, the court assessed whether the City’s decision was reasonable, meaning whether it appropriately balanced the City’s statutory objectives and CHP’s Charter right to freedom of expression. CHP argued that the City’s reasons lacked coherence and unjustifiably restricted their political speech.

The court found the City’s decision to be reasonable. In determining whether the City proportionately balanced CHP’s Charter rights with its own statutory objectives (as found in the City’s Equity and Inclusion policy and its Protocol for Gender Identity and Gender Expression), the court found that it did, as the City had consulted with CHP about their concerns, and also turned to various literature and advocacy groups before reaching its decision to reject the advertisement.  The City carefully balanced their objective to provide a safe transit environment with CHP’s right to free expression, considering that the advertisement’s message could be seen as discriminatory and harmful to transgender individuals. The court also considered that City’s rejection of the ad did not prevent CHP from expressing its views in other forums, and the impact on CHP’s rights was minimal in comparison to the potential harm to the community.

The decision had an internally coherent logic, and demonstrated a rational chain of analysis. The court concluded that the City’s decision fell within a range of acceptable outcomes.

Bias

CHP accused the City of being biased against them, citing previous court cases in which the City had allegedly censored CHP’s political and religious expression regarding the same or similar political topics. The court rejected this argument, finding no evidence of bias or discriminatory intent in the City’s handling of the advertisement. The previous cases cited by CHP were procedural decisions that did not indicate a pattern of biased behavior by the City.

Remedy

Since the court found that the City’s process was fair and its decision reasonable, there was no need to consider potential remedies.

Conclusion

The court dismissed CHP’s application for judicial review, upholding the City’s decision to reject the advertisement. CHP was ordered to pay $35,000 in costs to the City. The court emphasized that while freedom of expression is a fundamental right, it must be balanced against other important societal interests, such as the safety and inclusion of vulnerable communities like transgender and non-gender-conforming individuals.

This case was digested by Emma Jerrott of Harper Grey LLP and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please feel free to contact her directly at [email protected].