City failed to balance the severity of the interference with Charter values against a policy on acceptable advertising when it relied on a national regulatory body to remove advertisements

Administrative law – Decisions reviewed – City – Judicial review – Standard of review – Reasonableness – Municipal – Advertising policy – Human rights complaints – Charter

Guelph and Area Right to Life v. Guelph (City), [2022] O.J. No. 363, 2022 ONSC 43, Ontario Superior Court of Justice, January 26, 2022, M.L. Edwards R.S.J., M.K. McKelvey and L.G. Favreau JJ.

The applicant brought an application for judicial review challenging decisions from the respondent, City of Guelph, to remove anti-abortion advertisements from buses owned and operated by the respondent.

In 2016, the respondent adopted a policy on acceptable advertising that was implemented so City staff would not have to make decisions about advertising on City property without guidelines and a proper decision-making process. The policy incorporated the Canadian Code of Advertising Standards and required advertisements to comply with the Ontario Human Rights Code, the Canadian Charter of Rights and Freedom and the Criminal Code of Canada. The policy gave the respondent the ability to reconsider whether to refuse an advertisement and gave members of the public an opportunity to complain to Advertising Standards Canada. The City contracted with a third-party company that managed the advertisements placed on City buses. Under the contract, the third-party agreed to comply with the City’s policy on advertisements and also to remove any advertisements that violate the Policy at the City’s request.

The applicant is a registered charity that advocates against abortion and other matters such as against assisted death. The applicant posted advertisements on City buses and other property for the past twenty years.

The respondent ran advertisements of the applicant. After the advertisements were posted, the respondent received complaints about several advertisements that were referred to Advertising Standards Canada. Advertising Standards found that the advertisement was misleading. The third-party informed the applicant that the City was removing the advertisement under the City’s policy. Two other advertisements were also removed after decisions from Advertising Standards found that the advertisements were misleading, demeaning or disparaging.

The applicant argued that the City’s decision to remove the advertisements were invalid and contravened section 2(b) of the Charter and improperly fettered its discretion by delegating its decision-making powers to Advertising Standards.

The Court observed that it is to apply the test developed under section 1 of the Charter (the Oakes test) when legislation or government policy may limit section 2(b) Charter rights. The administrative decision-maker is to balance the severity of the interference with Charter values against the statutory objective. Courts are to review the administrative decision-makers balancing exercise on a reasonableness standard.

The Court held that the respondent failed to give any consideration to the applicants right to freedom of expression when it adopted the decisions from Advertising Standards to justify its decision to remove the advertisements as these decisions did not undertake a balancing exercise. Therefore, the respondent’s decision to remove the advertisements was unreasonable. The Court remitted the matter back to the respondent to be decided with the reasons. The respondent was awarded $25,000 in costs.

This case was digested by Jackson C. Doyle, 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 contact Jackson C. Doyle at [email protected].

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