Transit advertisements balancing a safe transit system against freedom of expression

The Applicants, a political party, were unsuccessful in appealing a decision of the Ontario Divisional Court regarding the City of Hamilton’s refusal to allow an advertisement for its party. 

Administrative law – Decisions reviewed – Municipal council – Judicial review – Appeals – Bias – Natural justice – Procedural requirements and fairness – Standard of review – Reasonableness; Municipalities – By-laws; Human rights – Gender.

Christian Heritage Party of Canada v. Hamilton (City), [2026] O.J. No. 1118, Ontario Court of Appeal, March 18, 2026, L. Sossin, J.M. Copeland and L. Madsen JJ.A.

The applicants, Christian Heritage Party of Canada and Christian Heritage Party Hamilton-Mountain Electoral District Association, are a political party and its local association. 

In 2023, the Applicants sought to place an advertisement with the Respondent City of Hamilton’s (the “City”) city-owned bus shelters.  The advertisement depicted a woman alongside text defining a woman as an adult female and linking to the Applicant’s platform on gender issues. 

The City had a policy for commercial advertising on City-owned property (the “Advertising Policy”).  The Advertising Policy required proposed advertisements to comply with local laws and City policies.  The City had a policy for diversity and inclusion, and a policy for gender identity.  The City rejected the requested advertisement in 2023.  The City provided multiple different reasons for the rejection through correspondence.

The Applicants applied for judicial review regarding the City’s decision to refuse the advertisement.  The Applicants advanced three grounds: (1) the decision was made in a procedurally unfair manner; (2) the decision was unreasonable; and (3) the City exhibited bias. The Ontario Divisional Court rejected each of these grounds.

The Applicants appealed the Divisional Court’s decision to the Ontario Court of Appeal.  The Applicants argued that the Divisional Court: (1) erred in the description of the decision on review; (2) misapplied the Baker factors in determining that there was no breach of procedural fairness; and (3) improperly balanced the competing Charter-protected rights. 

The Court of Appeal first considered the standard of review.  There is no deference owing in respect of the question of which decision is subject to judicial review.  Regarding procedural fairness, the Court needs to consider whether the decision-maker discharged its duty of fairness.  The Court also considers whether the Applicants show that the decision was unreasonable.  The Court considers the City’s balancing of the Charter-values analysis on a standard of reasonableness.

The Court of Appeal rejected the Applicants’ argument that the Divisional Court erred in concluding that the City’s decision letter was the decision under review.

The Court of Appeal rejected the Applicants’ argument that the City breached its duty of procedural fairness.

The Court of Appeal rejected the Applicants’ argument that the City unreasonably applied the Charter analysis framework. 

The Court of Appeal dismissed the appeal and awarded costs to the City.

This case was digested by Scott J. Marcinkow of Harper Grey LLP.  If you would like to discuss this case further, please feel free to contact him directly at [email protected].