Facts:
In March 2021, the Applicants sought to post an advertisement on the City of Hamilton’s buses that identified an unborn fetus as a person. The City of Hamilton replied by email saying that the ad was inaccurate and that the ad “would need to be revised so as to not reflect personhood in relation to the image.” The City also suggested some revised wording for the ad.
The Applicants responded to the email saying that they did not understand the issue regarding “accuracy” and asked for an explanation of the “legal problem.” The City replied by email again advising that the ad could not refer to the unborn fetus as a person and suggesting the same revised wording. The City also referred the Applicant to an Ad Standards Council decision which was available on the Council’s website dealing with a similar issue and which found an advertisement to be misleading in light of Clause 1 of the Canadian Code of Advertising Standards and the Criminal Code, R.S.C. 1985, c. C-46.
Rather than continue the conversation by email, the Applicants initiated a judicial review of the City’s decision saying that the reasons in the email were inadequate and the decision violated s. 2(b) of the Charter of Rights and Freedoms—freedom of speech.
Prior to the hearing, the City of Hamilton conceded that its reasons were inadequate.
Decision:
Application allowed (per Lococo, Emery and Schabas JJ.).
The decision was quashed and remitted back to the decisionmaker.
The parties were aligned that the emailed reasons were inadequate and they could not be supplemented after the fact on the judicial review.
The parties were opposed on what relief the Court could offer. The Applicants urged the Court to “weigh in on the controversial issue of whether a fetus is a person and, depending on the outcome, have th[e] Court order the Ad be posted”. The City argued that the Court ought to remit the decision back to the City where it would reconsider its position and, if rejected, provide reasons.
The City’s position is accepted. Relying on Guelph and Area Right to Life v. City of Guelph,1 “it is not for the Court to engage in reasoning that ought to have been undertaken by the decision-maker” (para. 13). As the Court said in Guelph: “… it is not the court’s role at this stage to weigh in on an evaluation of the advertisements. Rather, it is first for the City to weigh the issues identified by the Coalition against the applicant’s right to freedom of expression.”
Following Vavliov,2 “[t]he discipline of providing reasons will require the City to carefully consider and articulate its objectives and concerns regarding the nature of permitted advertising on its public transit, and to balance those objectives with the important constitutional right to freedom of expression” (para. 15). If the City rejects the ad again, and the Applicants seek another judicial review, the Court will then have the benefit of the City’s reasons and can subject them to appropriate scrutiny.
Although this gives the City a “second kick at the can”, this is appropriate because there was no apparent bad faith on the part of the City in its initial inadequate response. This was not a circumstance, like a tribunal, where legal reasons would typically be expected. It was an email discussion about whether the City would enter into a contract with the Applicants.
Commentary:
By falling back on its limited role on a judicial review, the Divisional Court was able (at least temporarily) to side-step the thorny issue of the content of the Applicants’ ad and whether a municipality is required under s. 2(b) of the Charter to display those ads. The City will now need to undertake a Doré/Loyola analysis following the Court’s guidance in Guelph and, if it chooses not to accept the ad, provide more fulsome reasons for its decision.
This decision is consistent with the Court’s role in administrative law. While there are pros and cons to both the Applicants’ and Respondents’ positions, this decision represents the balance our court system has struck. The legislatures delegate their authority to bodies who presumably have the knowledge and expertise (including expertise in the regulatory schemes) to make the decision. The Courts rely on those bodies to provide reasons and a full evidentiary record so they can assess the reasonableness or correctness of those decisions. A decisionmaker should not be granted multiple opportunities to correct its mistakes and the courts should not incentivize carelessness or laziness by a decisionmaker. However, where an admittedly incorrect analysis is done in good faith, the decisionmaker should be able to go back and try again because, in the process the parties will hopefully build an evidentiary record based on the correct test in the event the decision needs to be reviewed again. While this balance risks adding more burden on our court system (if the parties judicially review the new decision), it ensures that the court does not make ill-informed decisions based on limited records and inadequate understanding of the applicable legislative and regulatory schemes.
This decision also offers useful guidance for municipalities and other entities that are subject to the Charter in their dealings with members of the public, including their contractors and vendors. Although they may find themselves making a determination that does not initially appear to be a decision that requires legal analysis, such as negotiating a contract, their employees and agents must have adequate training to identify whether their communications could be viewed as a decision by an administrative decision maker and what the necessary legal considerations are in forming that decision. It may not be sufficient to merely rely on prior decisions by municipalities or organizations. A municipality must show it turned its mind to the Charter issues and explain how it arrived at the balance it reached.