Photo of a Koodo mobile ad by Marc Lostracco.

Two pending lawsuits challenge the constitutionality of certain aspects of the City of Toronto's sign by-law [PDF].

The first aspect is the by-law's less favourable treatment of signs mounted on walls (known as fascia signs, most commonly made of vinyl) versus signs painted on walls (known as murals). Murals may be placed more closely together, and it is generally easier to obtain planning permission to install them. Titan Outdoor Canada Company, which has installed fascia signs in numerous locations where it is permitted only to install murals, alleges that this distinction is unconstitutional [PDF].

The second aspect is the by-law's less favourable treatment of signs advertising third-party products or services versus signs advertising a property owner's or tenant's own products or services—think Honest Ed's and Sam the Record Man. Strategic Media, which is in the business of installing third-party signs, alleges that this distinction is unconstitutional [PDF].

Common to both lawsuits is the belief that these restrictions on fascia signs and third-party signs are unconstitutional, given that identical restrictions do not also exist for murals and people's own signs. Are they?

It is settled law in Canada that commercial expression is a protected form of expression under section 2(b) of the Charter of Rights and Freedoms. Equally, it is settled law that governments may impose reasonable restrictions on this form of expression under section 1 of the Charter.

The case of Vann Niagara v. Oakville, heard in the Ontario Court of Appeal and then the Supreme Court of Canada, addressed a municipality's power to restrict certain types of signs. Oakville's sign by-law banned all third-party signs and all billboards (i.e. signs greater than 80 square feet). The courts split the difference, ruling that the ban of all third-party signs was overly restrictive on commercial expression and thus unconstitutional, but also upholding the ban of billboards for reasons that included aesthetics, driver safety, and preservation of historical character.

Cases like these are notoriously fact-specific, so it would be unwise to rely on Vann in trying to predict the outcome of the Toronto cases. Where Vann comes in handy, however, is in understanding the questions that a court will ask when considering the constitutionality of Toronto's by-law: first, whether Toronto has a pressing and substantial objective in restricting fascia signs and third-party signs; and second, whether Toronto's means of regulating these signs are proportional to this objective.

The first question should be fairly straightforward, as courts typically show deference when assessing whether a legislative objective is "pressing and substantial." Provided that the City can offer at least some reasons for restricting fascia signs and third-party signs, it should be able to pass this test.

The second question is the more difficult one. A court's assessment of proportionality will ask whether the by-law's restrictions are rationally connected to the by-law's objectives, whether these restrictions impair an advertiser's right as little as possible, and if on balance whether the objectives justify the effect of having such restrictions in place.

It is difficult to predict where a court will come down on this question. However, the inconsistencies in the by-law—fascias are regulated more stringently than murals, and third-party signs are regulated more stringently than people's own signs—may make it difficult for the City to rely on the normal reasons that municipalities give for regulating signs. To put it another way, if the City's reasons for restricting fascia signs or third-party signs are that they decrease aesthetics, affect driver safety, and disrupt the historical character of a place, why doesn't it regulate advertising murals and people's own signs in exactly the same way?

There are two ways for the City to get out of this conundrum. The first is to put together a set of compelling reasons why fascia signs and third-party signs should be subject to tighter restrictions than advertising murals and people's own signs. The second is to amend the sign by-law such that all signs are subject to the same regulatory regime.

The lawsuits have now been filed, which means that time is ticking down. What's your move, Toronto?

Photo of iPod billboard by Gabi~; photo of Sam the Record Man by moonwire. All from the Torontoist Flickr Pool.

With thanks to Rami Tabello of IllegalSigns.ca for the tip about the Strategic Media lawsuit.